Are death penalty decisions fair? Two lawyers debate

Who gets the death penalty?
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Paul Callan is a CNN legal analyst, a former homicide prosecutor and media law professor. He is "of counsel" to two law firms: Edelman & Edelman PC and Callan, Koster, Brady & Nagler LLP. Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The views expressed are their own.

(CNN)News this week that a woman in Georgia was executed over the killing of her husband and a man sentenced to die in Oklahoma was given a 37-day stay on his execution has pushed the issue of capital punishment back into the spotlight. CNN Opinion asked two legal analysts -- former homicide prosecutor Paul Callan and criminal defense attorney Danny Cevallos -- for their take on the death penalty in America.

Danny Cevallos: In 24 hours, the state of Georgia has executed Kelly Gissendaner, and Oklahoma's governor has stayed the execution of Richard Glossip. The two death row inmates have one fact in common: they were sentenced to death ... even though they personally did not take a life.
Danny Cevallos
Even if you are not persuaded by the Pope's opposition to Gissendaner's execution, then how about our society's growing opposition? Many states now limit the availability of the death penalty for felony-murder accomplices who neither kill nor intend to kill; doing so is no longer the majority rule.
Paul Callan: Good point, Danny. I agree that some states do limit exposure of the so-called "non-shooters." But even the states granting the execution exemption only do so where the non-shooter, stabber, etc. didn't know about nor plan or participate in the killing. That's not the case for Gissendaner.
    Just look at the facts in that case. No, she wasn't the actual killer. But what she did was arguably even worse -- she plotted the murder of her husband for months with her lover and "hit man accomplice." Then she supplied the nightstick and knife to make sure her hubby was properly beaten and stabbed in the neck -- eight times! After that she went dancing with her girlfriends, returning too late to the murder scene to inflict a fatal wound, but in time to make sure her husband was dead.
    Paul Callan
    Sure, she looked very sympathetic prior to her execution, with even Pope Francis asking for clemency. But then again, the Pope would have supported clemency for Osama bin Laden, because he opposes all executions regardless of circumstances. The Pope is even against life imprisonment. (Although like I wrote last month, that's his personal opinion, not an "Infallible" doctrine of the Roman Catholic Church).
    Cevallos: You sir, are a barnacle on my SS Good Point. We agree: what she did was particularly heinous. Plus, the Supreme Court ruled decades ago that an accomplice who neither kills nor intends to kill may still be constitutionally executed for his co-felon's homicides. It's true that accomplices in cases like these are equally guilty. But guilt is a separate phase from the sentencing phase, and one of the primary objectives of the sentencing phase is proportionality. Executing those who do not kill threatens the goal of proportionality -- the idea that our punishment should at least try to fit the crime.
    Callan: Just trying to prevent The SS Good Point from becoming the SS Titanic ... Do you know how bad the crime has to be for a woman to get the needle, the electric chair or the noose? Really bad, Chamber of Horrors bad. Between 1900 and 1973, fewer than 1% of those executed in the United States have been female.
    Most of those cases involve barbarity, cruelty and planning. The victim is almost invariably an intimate. This suggests, unlike killings of strangers, there was plotting, premeditation and motive rather than a momentary twisted impulse. If the voters insist on a death penalty, this is what it is for. And in the Kelly Gissendar case, she appears to have been more responsible for a death than the actual killer. It was her idea. She pushed the killer into committing the crime.
    Cevallos: Paul, I agree with you -- and that's how you know you're right. Women are rarely executed. However, that's not because of some subtle gender bias. It's because women, as a group, commit crimes about as often as, say, octogenarians or fetuses. Women are 50% of the population. They are 6.7% of the population in the Federal Bureau of Prisons. And even if we do subconsciously give a death penalty break to someone because they are female, maybe it's just a quid pro quo for the break womankind has since the dawn of time given society on killings.

    Can we trust the trigger man?

    Callan: You are the master of statistical obfuscation. I know that you are a highly experienced criminal lawyer, and that you try many of your cases in federal court. You say the deal was unfair here because the non-killer got the death penalty while the actual killer got a break. But isn't it true that in federal cases, the first defendant who seeks to cooperate often gets the best deal?
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    Federal and state prosecutors always use the testimony of one bad guy to convict another -- these crimes aren't being committed at Sunday school. We pick a jury of the defendant's peers to carefully scrutinize the testimony and evaluate who is telling the truth and who is lying. If there was a deal, the law requires that the jury is told about all of the deal details and a defense attorney pounds away at the theme that the witness is a liar bought and paid for by the evil prosecution. Jurors figure out collectively who is telling the truth. The jury system is the core and heart of American justice. Then panels of highly experienced judges in our court system look at the evidence again and again in appellate proceedings that last as long as 20 years to make sure the verdict was correct.
    Cevallos: And that's a big problem: the person punished the most is not always the most culpable -- he's often just the guy who wasn't approached by the prosecution with a sweet deal. How many of these culpable cooperating witnesses, with everything to gain by testifying, have put people on death row? These are often criminals who would testify against their own mother to knock off a few years. Letting triggermen testify against non-killing accomplices may accomplish the prosecutions' goal of more convictions, but it doesn't always accomplish fairness in sentencing.
    Callan: So we aren't going to agree on Gissendaner. But how about another case? In Oklahoma on Wednesday, another death row inmate, Richard Glossip, won a 37-day reprieve from his scheduled execution due to claimed problems with the availability of the appropriate death drugs. Death penalty opponents claim that this is an even stronger case of a non-killer being wrongfully sent to his death while the actual killer makes a deal and avoids a death sentence. Prosecutors convinced two Oklahoma juries that Richard Glossip, fearing that he would be fired for stealing from his boss, convinced a fellow worker to commit the actual murder. The down and out co-worker, Justin Sneed, says he feared the loss of his job and his room at the motel, which employed both men. He beat the boss, Barry Van Treese, to death with a baseball bat upon the orders and explicit suggestion of Glossip. Do you agree with Susan Sarandon and her crew of Hollywood celebs that Glossip deserves mercy because he didn't actually wield the bat?
    Cevallos: Ah, your question is cleverly crafted. Glossip doesn't deserve mercy, he deserves proportionality, like other defendants before a sentencing court. Richard Glossip didn't personally kill the victim in this case; he wasn't even in the room when his former boss was slain inside an Oklahoma City motel. For non-killers convicted of murder, there's a big range in liability between merely associating with the actual killer, and ordering and facilitating a murder. Unfortunately for those defendants, the chief witness against them is the same guy who we know actually killed the victim. A cooperating witness has everything to gain by giving the prosecution the testimony they want, and everything to lose if he doesn't sing for his supper.
    Would you trust a cooperating witness to babysit your kid? No? Then why, with such an inherently fallible system, would you listen to anything they say about their ex-friend on the stand? The point is, our system is inherently fallible, which is why the death penalty is an unnecessary constitutional risk.
    Callan: We'll have to agree to disagree about much of the way the Glossip case has played out. But would you agree with me on one aspect of the case? This reprieve because of a drug shortage. Doesn't that demonstrate at best a miscalculation on the part of death penalty opponents?
    One of the arguments opponents of capital punishment make is that the death penalty must be ended because the medications used to induce death by lethal injection are of uncertain reliability, and so may lead to a cruel and painful death in violation of the Eighth Amendment. This argument has resulted in a postponement of executions in several states, though it has yet to cause the U.S. Supreme Court to ban executions.
    The inappropriate drug argument has been raised in Oklahoma in an attempt to delay the execution of Glossip. And although Oklahoma officials claim they will shortly have the proper drug combination available, in other cases it is clear that the unavailability of the drugs necessary for a painless death has been caused by death penalty opponents pressuring European pharmaceutical suppliers to stop producing the necessary ingredients for the traditional injection combination. A three-drug cocktail of drugs is frequently used in lethal injection executions: Sodium thiopental to induce unconsciousness, pancuronium bromide (Pavulon) to induce muscle paralysis followed by respiratory arrest, and potassium chloride to stop the heart.
    Danny, couldn't it backfire for those worried about the "cruelty" of the death penalty if opponents cause the very drug shortage that makes a painless death difficult to produce? What happens next? A much more painful method? After all, the Supreme Court has previously upheld hanging, firing squads and the electric chair. Do we really want to return to those methods if proper drugs are not available for lethal injection And how does this affect the question of constitutionality?
    Cevallos: When it comes to the Eighth Amendment, if you subscribe to Justice Scalia's view, the Constitution means today not what current society thinks it ought to mean, but what it meant when it was adopted. And if that's the case, then I think people in George Washington's time unquestionably would not have considered the death penalty unconstitutional. And there is the argument that the Supreme Court stepping in to abolish the death penalty would override the constituencies of many states who have chosen to enact it as law. My argument is more utilitarian: What are we getting out of the death penalty that's so much better than life in prison?
    This goes to your drug argument: One way of looking at the shortage of drugs could be that death penalty opponents have effected the shortage. Another way is that pharmaceutical companies, and medical providers in general, are already averse to "tinkering with the machinery of death." After all, doesn't capital punishment itself undermine the basic tenets of medicine and pharmaceuticals? That we use an alcohol swab on a condemned man's arm before we give him a lethal dose of pentobarbital seems nonsensical. Ultimately, like nearly every legal question, I think that's what the death penalty comes down to: a balancing test. Does the additional benefit of killing a prisoner (instead of a life sentence) outweigh all the problems that come with it? It's hard to argue it does.