Judge Alex Kozinski
Professor Burt Neuborne
Director Madeline deLone ’94 and staff attorney Vanessa Potkin were joined by their client Clark McMillan for a Root-Tilden-Kern Monday Night Speaker Series appearance. The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University works to exonerate the wrongfully convicted through postconviction DNA testing. The project handles only cases where postconviction DNA testing can yield conclusive proof of innocence, which was the case with McMillan, who was cleared of rape and robbery charges after spending 22 years in jail. McMillan is one of more than 150 people to have been exonerated by DNA evidence. DeLone told the audience that a vast majority of the exonerees (87 percent) were convicted based on mistaken eyewitness identifications. She attributed much of those errors to bad police procedure in conducting lineups and other forms of pretrial identification. The Innocence Project is lobbying for eyewitness identification reforms, a moratorium on the death penalty and for postconviction rights to DNA testing.
The Juvenile Death Penalty
The other panelists were less certain. Christina Swarns, director of the Criminal Justice Project at the NAACP Legal Defense and Education Fund, said that the death penalty is disproportionately imposed on juveniles of color. Mary Hahn, a lecturer in law and supervisor of the Lowenstein Clinic in International Human Rights at Yale Law School, pointed out that the United States is among the very few countries that permit the execution of minors. Jeffrey Fagan, professor of law and public health at Columbia Law School, said that far fewer juveniles are sentenced today than a decade ago. The drop, he says, reflects a growing view that executing juveniles is especially problematic.
Kozinski, a noted libertarian, argued that the death penalty is a legitimate option and that despite evidence that innocent people have been wrongly convicted and executed, “if you accept a justice system with proof beyond a reasonable doubt,” rather than one based on proof beyond all doubt, “you should accept the death penalty.” He argued that capital punishment serves as “an expression of moral outrage of the community” and is the only foolproof way to protect others from becoming victims. “There’s only one category of people that doesn’t kill again, and that’s the people who have been executed.” Neuborne also invoked morality but as a reason to oppose the juvenile death penalty.
“More people have asked me if they can help me in the last 14 hours than anyone has in the last 19 years.” —A condemned man, moments before execution.
About four months later, the U.S. Supreme Court ruled in Roper v. Simmons that executing defendants who were under 18 at the time of the crime was unconstitutional. Roper did not, however, end the debate. Just one week after the decision was rendered, the NYU chapters of the Federalist Society and the American Constitution Society invited Ninth Circuit Court Judge Alex Kozinski and Burt Neuborne, John Norton Pomeroy Professor of Law at NYU, to wrestle with the death penalty in front of an overflow crowd of more than 200 students.
He said Roper followed the tradition of Brown v. Board of Education, in that neither history nor textualism guided the justices. Moral philosophy did. “Justice Kennedy effectively declares in the opinion, ‘I’m making an individual moral choice—that I cannot conceive of an appropriate moral situation in which it would be appropriate to execute a 16-yearold or a 17-year-old,’” Neuborne said. “To have an institution that intervenes on behalf of the weak and to say there’s no moral limit on what they can do, that is not something I apologize for,” he concluded. ■
I
n October, about two weeks after the U.S. Supreme Court heard oral arguments in Roper v. Simmons, a case concerning the juvenile death penalty, professors and practicing lawyers on both sides of this emotional issue presented their divergent views at a panel discussion sponsored by two student organizations, Law Students Against the Death Penalty and Law Students for Human Rights. New York Law School professor Robert Blecker took the controversial stance that the “worst of the worst” of juvenile offenders shouldn’t be spared. For instance, he said, consider the case of Mark Anthony Duke. At age 16, Duke shot his father and his father’s girlfriend and then slit the throats of their 6-year-old and 7-year-old daughters. “He’s evil. He’s vicious. He deserves to die. I’m certain of that,” said Blecker, a nationally known death penalty proponent. AUTUMN 2005
Moderator Steven Hawkins, left, along with panelists Christina Swarns, Robert Blecker, Jeffrey Fagan and Mary Hahn, discussed juvenile executions.
THE LAW SCHOOL
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