Most Americans don’t spend a lot of time thinking about the death penalty, but this year, it has been hard to ignore. In January, in Oklahoma, Michael Wilson’s last words during his execution were, “I feel my whole body burning.” A week later, in Ohio, an experimental cocktail of drugs left Dennis McGuire gasping for breath for 26 minutes before he died. Clayton Lockett writhed in pain on the gurney during an April lethal injection in Oklahoma; Joseph Wood slowly expired over the course of two hours in July in Arizona. That same month, a federal judge ruled California’s death-penalty system unconstitutional, raising the possibility that the country’s largest death row will be dismantled.
With the death penalty on the defensive, you might expect an army of activists to come to its aid. But even though a majority of Americans — 60 percent, according to a June ABC News/Washington Post poll — support capital punishment, passionate death-penalty advocates or experts can be difficult to locate. “I get asked a lot, ‘Who are some people who strongly defend the death penalty,’ because [reporters] can’t find them,” says Richard Dieter of the Death Penalty Information Center, which opposes capital punishment. “There aren’t that many.”
On almost all other hot-button issues in U.S. politics — abortion, gay marriage, immigration, tax policy, affirmative action, foreign policy — many heartfelt voices can be found on all sides of the debate. Capital punishment is an odd exception. “With most people that would say they’re in favor, it’s just sort of a reflexive opinion,” says John Blume of Cornell Law School’s Death Penalty Project. “You don’t meet a lot of people who wake up in the morning and say, ‘OK, let’s go get some people executed.’ “
But that doesn’t mean there’s no one to argue for capital punishment. Blume and Dieter both start their short list of death-penalty champions with the same person: a scholar named Kent Scheidegger, the top lawyer at the Criminal Justice Legal Foundation, a small think tank in Sacramento, California. For nearly 30 years, Scheidegger has dedicated his professional life to defending the death penalty. And he’s often the go-to wonk for his side of the debate. When California’s death penalty was ruled unconstitutional in July, it was Scheidegger who provided outlets from The New York Times to the Los Angeles Times to NPR with their sole quote decrying the judge’s decision. Page back through years of similar coverage, and his name pops up again and again. “I think even for supporters of the death penalty, if you had them rank what they care about the most, it wouldn’t be high on their list,” Blume argues. In that respect, he says, Scheidegger is “a lone wolf.”
The truth, of course, is that Scheidegger isn’t the only scholar putting forth arguments for the death penalty. He’s joined by, among others, Robert Blecker of New York Law School; Joshua Marquis, a district attorney in Oregon who often speaks on the topic; and William Otis, an adjunct professor at the Georgetown University Law Center. But with the national death-penalty debate revolving increasingly around California, Scheidegger is, at this point, the leading public advocate for a movement that has very few spokesmen.
SCHEIDEGGER GREW UP in Vienna, Virginia, just outside Washington, and his ambition from a young age was to serve in the military. He spent six years in the Air Force after graduating from college, earning his law degree while on active duty. When we spoke recently, he said his passion for military service and his feelings about the death penalty came from “the same core beliefs.” “I think the main purpose of government is to protect people from enemies, foreign and domestic,” he told me. “Military service and law enforcement are two sides of the same coin.”
I asked Scheidegger about the origins of this animating philosophy, but he couldn’t pinpoint them. It wasn’t his parents; they were liberals and enthusiastic supporters of the civil-rights movement who carried him along when they handed out campaign literature. “It’s a fair question, but I don’t have a fair answer,” he says. “I wouldn’t say I was a reaction. I just charted my own path.” (Unlike some death-penalty advocates, Scheidegger has never been personally affected by violent crime. He also has never attended an execution.)
In 1986, he was employed as the general counsel at California Cooler — an alcoholic-beverage company — when Californians voted three liberal justices off the state Supreme Court for refusing to enforce the death penalty. Scheidegger, who had nursed an interest in constitutional originalism — the belief that the Constitution should be read as the Founders intended — says he was “outraged at the arrogance of judges “… misconstruing the Constitution to mean something it was never intended to mean.” He decided the death penalty was “the one area in all of jurisprudence where the misuse of judicial authority is the greatest” — and therefore the one most in need of his energies.
Scheidegger went to work as the legal director of CJLF. His predecessor had dabbled in a variety of conservative causes, but during Scheidegger’s tenure, the group has focused on capital punishment. Its website boasts that “with a fraction of the annual operating funds spent by civil liberties groups, the Foundation has maintained the best win/loss record before the United States Supreme Court of any public interest law organization in America.” Conservative justices have repeatedly cited Scheidegger’s amicus briefs and law-review articles, most recently this past term in White v. Woodall, in which the Court upheld a death sentence in Kentucky.
One natural ally for Scheidegger is the victim’s-rights community. “We all turn to Kent for the legal side,” says Harriet Salarno of Crime Victims United. Yet among intellectuals, Scheidegger is clearly in the minority. “You’re not particularly well respected as an academic or public-policy expert if you support the death penalty,” says Douglas Berman, a sentencing expert at Ohio State University’s law school who calls himself a capital-punishment agnostic. “It’s a little bit that they tend to be liberal circles,” but also “there’s a sense that the more you know about the intricacies of the death penalty, the less likely you are to support it.”
“We need to be careful we don’t impose torturous deaths on people, but we don’t need to be so squeamish as to say a person needs to feel no pain at all. I mean, it is punishment.”
“Baloney,” Scheidegger says when I pose this to him. “I’ve been studying and working in this area for a long time, and I haven’t found supporting it to be any more difficult than it was the day I started.” Scheidegger says he deplores the homogeneity of academia, but he doesn’t let it get to him. “I’ve certainly been called lots of nasty names. You just take that in stride and develop a thick skin.”
Among Scheidegger’s controversial views: He argues that the death penalty deters criminals, although in the academy this idea is widely considered discredited. Even the neutral Berman has said that “there’s not a lot of evidence that crime spikes up dramatically” in the absence of capital punishment. In Scheidegger’s view, “What happened is, the people doing studies finding deterrence have sort of given it up, because they’re being attacked, and the people who are ideologically driven to oppose the death penalty keep pumping out papers.”
Scheidegger also has a theory to explain the fact that killers of white victims are far more likely to receive the death penalty. He argues that this is “not the result of discrimination against black people but rather the empowerment of black people,” who tend to oppose capital punishment and therefore do not use it in their own communities. “Why should anyone be surprised that areas with a high black population elect prosecutors who seek the death penalty less often and form juries that impose the death penalty less often?” Scheidegger has written.
Blume, who has studied the same issue, takes issue with Scheidegger’s hypothesis. “To say it’s attributable to the political dynamics — it could be in some places, sure, but that doesn’t explain that you see the phenomenon in every state that you look at,” he says.
Scheidegger is also unfazed by the recent bad press surrounding the death penalty. When I bring up the four lethal injections that went awry this year, he says he would only apply the word “botched” to the execution of Lockett — who appeared to be in so much pain that officials halted the procedure, although they were too late to stop him from dying. The two- hour execution of Wood was “uncomfortable for the witnesses,” Scheidegger allows, but not problematic because Wood was sedated.
“I don’t think a murderer has a right to a painless death,” he says. “We need to be careful we don’t impose torturous deaths on people, but we don’t need to be so squeamish as to say a person needs to feel no pain at all. I mean, it is punishment.”
SCHEIDEGGER’S HOME STATE of California now looks poised to become the 19th to abolish the death penalty. California Attorney General Kamala Harris has said she will appeal the recent anti-death-penalty ruling by Cormac Carney, a federal judge appointed by George W. Bush. But if it stands, the state will have two choices: throw out capital punishment completely, or reform the state’s beleaguered death row.
California executes a tiny fraction of the people it sentences to death — 13 out of more than 900 since 1978 — and often only after decades-long delays. Carney wrote in his decision that because it has become so unlikely that the state will carry out death sentences, and because the few inmates who are executed are chosen so arbitrarily, the system no longer serves a legitimate purpose.
Scheidegger is one of the few voices insisting that California’s death penalty can be successfully reformed. Even before Carney’s ruling, CJLF helped to pen a ballot initiative that would limit the time spent reviewing capital cases, thereby increasing the rate and number of executions. It would also lower the cost of the state’s death row, which currently hovers around $180 million a year. Scheidegger blames much of this expense on defense attorneys, who he accuses of stalling to keep their clients alive. The initiative didn’t collect enough signatures to make the 2014 ballot, but Scheidegger says its supporters will try again for 2016.
I ask Scheidegger if he ever thinks about moving on to another topic. Blecker, one of the other major pro-death-penalty scholars, told me he is writing a book about the philosophy of game and sport now, because he’s “looking to celebrate life.” But Scheidegger says he doesn’t find capital punishment psychologically taxing, and he has no plans to abandon his work.
Berman, for one, is glad. “Absent many well-respected people trying to develop a full-throated defense of the death penalty, I appreciate that Kent is out there doing his best,” he says. “There’s a bit of groupthink on this frontier. It makes me inclined to root for the underdog.”