that has often been the case but remember whatever the republic was in danger is our crisis in 1861. we turned abraham lincoln so it's an absolutely optimistic note for the future even as i write about their previous bid of lackluster leadership. other questions? that's time. thank you so much for coming. [applause] [applause] >> thank you sir. two things everybody. first and foremost. this is sitting over the table and i have a couple of boxes underneath the table in case of iraq. we ask that you please take the book to the register first to pay for it and you for it and you can line up your interest will sign up on the state. last but not least carefully fold the chair that you are seated upon and place them up against the floor. i would be very helpful.

thanks everybody. [inaudible conversations] next on booktv "after words" with guest host jeffrey rosen presidency of the national constitution center. this week justice john paul stevens and his latest book "six amendments" how and why we should change the constitution. a retired u.s. supreme court justice targets gun violence, the death penalty, gerrymandering and campaign finance in the amendment he believed would better protect and empower citizens. the program is about an hour.

>> host: welcome justice stevens. on behalf of the national constitution center is so great to see you. you honor the national constitution center a few weeks ago by visiting us. the constitution center is the only constitution center center center that there must -- disseminates information on nonpartisan basis and i can't think of a better book to discuss and capturing that mission than your wonderful new book, "six amendments" how and why we should change the constitution. you have proposed six constitutional amendments on topics ranging from campaign finance and sovereign immunity and political gerrymandering to gun control and the death penalty and the anti-commandeering principle. all of these are cases where the supreme court ruled differently and you dissented in many these cases. tell me why you decided to write the book and why he decided to

propose the six constitutional amendments? >> guest: well it sort of a project that just kind of grew to tell you the truth. the immediate cause was the killing of the schoolchildren in connecticut and "the new york times" story about the fact that the anti-commandeering rule paces and -- places some obstacle in the way the government putting background checks to perceive the purchase of guns. i have not actually realized before i read that "new york times" story that their rule does in fact increase the likelihood that a person would be eligible would be allowed to purchase a gun when he shouldn't. that is not the cause of that particular tragedy but it likely may have been the cause of similar tragedies. >> host: this anti-commandeering rule which is your first amendment and i've dogeared all of them with

high-tech pieces of paper, sounds technical but is actually quite important. i'm going to read the amendment that you propose and you can help explain it. you say that adding just the four words and, other public officials after the word judges and the supremacy clause would allow congress to impose mandatory duties on public officials in every state. what does that mean and what is the problem you are seeking to remedy? >> guest: well i think the supremacy clause properly construes would already have allowed the government to impose mandatory duties on state officials at least for example i would have thought they could have requested a local policeman to help search passengers in airline terminal or something of that thing. the court has decided as you know otherwise. i think the potential consequences of this decision are more serious than many

people realize. they are not the kinds of consequences that arise every day but it's a time bomb sitting in the back of the room as far as i'm concerned that may in fact impede action that could be terribly important to the national situation. >> host: the prince case you mention about a gun free school zone act of federal law that congress passed to regulate guns in schools. the supreme court struck it down on the grounds that federal officials can't command state officers to carry out certain duties and you presciently objected and said a future terrorist attacks and this was before 9/11 and he said this would make it hard to respond to terrorism and other acts of violence. >> guest: that's exactly right and i really think the rule in place now would interfere with a draft law for example where both in world war ii and other prior

situations the federal government had made important use of state officials to help get the army drafted and i do think it's more important than people realize. >> host: you also said the court misconstrued previous precedence that before the court refused to endorse the broad states rights principle and then prints it really change the law by exulting state's sovereignty to a degree that was not justified. >> guest: well that's true although it's interesting that the majority opinion in prints did not say either of the two faces that would have provided better support for any site that they did site. one of them was a pre-civil war piece that basically held it was an anti-commandeering rule and justice marshall in a later opinion overruled that case and basically said it's a product of

another part of our history long gone by. it's pretty simple. >> this is a big theme that works throughout the book. in your view the civil war and the reconstruction amendments that followed it transformed the relation between federal and state power and gave the federal government broad power to protect minorities and to solve national problems. you object to many of these cases that some of your colleagues on the court would adopt a pre-civil war vision of state sovereignty that does not justify it after the reconstruction amendments themselves. >> guest: i think that's right and i really think although i don't say as much about this in the book as i learned while reading trying to put it together, i think president grant and immediate successes -- successors are not appreciated for the work they did and i think there were sort of an underlying campaigning among some historians who were partial

to the south largely to cast doubt the capacity of grant. i think he's a much better president than people assume. plus we also think the reconstruction amendments gave much broader powers to congress than the court has currently recognize. >> guest: that's correct. >> host: you have in your discussions sovereign immunity. that's a topic that sounds technical but you feel strongly about it and it has big consequences. it's also states a states rights issue. you will be able to explain that of course far better than i can. let me read the amendment you proposed when it comes to sovereign immunity and tell me what you think it's important. he said neither the 10th amendment, the 11th amendment or any other provision of this constitution shall be construed to provide any state agency or state officer within immunity from liability from violating any act of congress or any provision of the constitution. why do you propose back?

>> guest: is a fairly long story and it's an interesting story because the doctrine that is now in place according to majority holdings is implicit in the plan of the prevention that's part of the constitution. it started out chisholm against georgiana question whether there was a immunity community to protect georgia from paying its debts. there was a vote 4-1 that showed there was no immunity. in response to that decision and for years particularly the opinions by john marshal the amendment really was construed very narrowly to apply only to cases in which the state itself was concerning sovereign immunity. he basically construed it anyway that relief had been granted against other state offices the amendment would be no obstacle.

that was basically the state of the law until after the civil war and during the period of reconstruction process reinterpreting the rules began and particularly in cases rising out of louisiana. the court first held that's louisiana could not welch on an obligation. a few years later after there had been a change in administration and the northern troops have been removed from the south the clerk took the opposite view and cited a case which really is inconsistent with marshall's early ruling. i really think there's a connection between the reconstruction of states rights attitudes that developed in those years and the doctrine of sovereign immunity which later on became not only detected from paying their debts but it

developed over the years and that now protects the states from having their ages to require federal law. that no longer relies on the 11th amendment which didn't fit well anyway. we have moved into the area where is implicit in the convention even though four of the five people in the chisholm case didn't understand that. but then it developed to the point where it required stricter statements of federal intent to impose liability on state officials. the basket arrow hospital case basically announced that ruled and in response to that rule congress adopted several statutes requiring federal law and intellectual property areas for the most part in copyright

cases and trademark and support. this was on a bipartisan basis that the congress generally impose these rules which made a lot of sense. later on in the indian case in the name escapes me at the moment the court basically held that although statutes were unconstitutional. so that's one of the reasons i say this really should be a nonpartisan issue because i think the history of the whole development shows that congress did not treat it as a partisan issue and they didn't have much respect for this doctrine that goes back to early times in england when the king presumably could do no wrong. >> host: you help me understood it and i never begin law school but you said it was intended to prevent citizens of one state from suing a state for nonpayment of debts but not for not enforcing federal law and by invoking this document of the

dignity of the states the modern court is doing exactly what john marshal said they shouldn't do are basically exulting a pre-civil war states rights. >> is interesting, the thing is really, they do not explain why this doctrine makes any sense except they want some of them to use the word dignity which in one of john's marshall's opinions he specifically rejected dignity as a justification. >> host: that's remarkable. i was really struck by that. you talk about nonpartisanship and neutrality and that has been a theme of your jurisprudence in arguing that political gerrymandering should be challenged in arguing in favor of campaign finance reform. you believe that the state is a fundamental duty to act impartially and in a nonpartisan manner. tell me where that belief came from. >> i think that's the best way to address the equal protection

clause. imposed on the states a duty not to favor one segment of society or one group over another. if you focus on that central requirement it really makes things awfully easy, at least it does to me and it's a doctrine that frankly struck me at the time i was working on a case in the court of appeals for the 7th circuit before he came onto the court. we had a case involving the discharge as a whole bunch of employees by the secretary of state of illinois who basically said you either switch parties or you lose your job. that was the way that system works. it was just accepted as part of the practice. we decided in the case of a site on the book that the rule is

inconsistent with the duty to govern impartially and since then over the years the court has adopted that view and originally it could possibly change something in the law as long as it's been practice but they have for the most part gone along with that change. >> host: you just mention one area where your colleagues embraced this neutrality rule but there are others where courts are protected and you are particularly figures on the question of partisan gerrymandering. that is cases where legislatures draw districts in order to favor one party over another. i was a conference recently and heard bill gates who was asked what's the one thing congress can do to really reduce political polarization in america and he said eliminate partisan gerrymandering and this was a conversation with david brooks who responded that congress won't do that because the incumbents want to protect

themselves. that means the courts are the only refuge and in your book you describe although all of your colleagues agree extreme partisan gerrymandering violates the constitution the court has held it's not able to entertain the challenges. why have they held that in what do you propose to do to solve the problem? >> guest: well, first of all i think it's important that no judge as far as i know has ever defended the practice of the basic rule for what is going on now. it's not a partisan issue because the democrats are guilty of the same activity like states like maryland and california and so forth and the republicans are guilty of that activity in pennsylvania and texas for example. but there will be a change of administration within those states eventually and if the

legislature thinks in the long run i think they will recognize that both parties will be better off in the long run by simply getting rid of this practice and letting an election contest work on the merits for their respective parties. so it may be naïve of course but i think just as the wisdom of the approach that got rid of the patronage practices largely i think the state and their own legislature may realize it's in their best interest in the long run to have their elections fair between the two parties. >> host: i was at a panel recently at the national constitution center were congressman propose a bill that would require congress to create independent commissions in all states in redistricting and you

are a hero of his. he has read your book. he found they would be more competition in constituents would be more responsive to their constituents and also the more moderate because they have an incentive to win general elections rather than having safe seats. what are some other benefits you think would follow from a living -- eliminating part of it. >> guest: i do think when candidates primarily have to beat members of their own party and they are not worried about the general election they tend to become more doctrinaire and tend to avoid compromise. i do think the fact that primaries are a big deal in the election does have an adverse effect on their actual performance in office after they have been elected. i do think that's one of the explanations for the more partisan divide in congress today than there have been years

ago when i worked there. >> host: when he worked in the u.s. congress? >> guest: yes, i worked as associate counsel and broke republican counsel. i studied monopoly power in members of the two parties to work together on much legislation. there were high-visibility builds where there tended to be much more partisan but it was a different congress and we have today. >> host: of course the congress to confirm due to the supreme court i think had a unanimous vote as well. >> guest: well, 98. >> host: that counts. what has happened? is partisan gerrymandering part of the responsibility? >> guest: i really think it is. i hadn't heard about that before but i think it's right. just. >> host: the trick is coming

up with a judicial standard for policing partisan gerrymandering and you are very specific to get an specific about how to identify unconstitutional gerrymandering any of the mammoth person i will read it. her amendment was a districts represented by members of congress or by members of any state legislative body shall be compacting composed of contiguous territory. a state shall have the burden of justifying any departure from this requirement by reference to neutral criteria such as natural political or historic boundaries of demographic changes, the interest in enhancing or preserving the political power at the party controls the state government is not such criteria. tell us why you chose that language. >> guest: we also had in the book a few examples of partisan gerrymandering and khadr stewart would have had to rule planes could be when he said i know it

when i see it when he described an obscenity. but it is true that there are many glaring examples of very odd shaped districts that have no justification whatsoever. it isn't just the primary or anything like that. they have no justification whatsoever except to get the party in power and advantage in the election. there must be a duty to govern impartially requires government officials generally and legislatures more specifically to have some neutral reason for their action. they can't pay campaign finances of the state treasury. they have to finance independently. similarly they should not be motivated entirely by political considerations drawn in the

district. the standards for determining whether partisan gerrymandering i recommend are precisely the same as it been in place for a good many years with respect to racial gerrymandering. and if they can tell a racial gerrymander by the size and shape of the district there's no reason in the world why they couldn't apply exactly the same standard to partisan gerrymandering because if you look at it you can see it's an issue. there is the same to avoid gerrymandering in racial or partisan grounds. >> host: you are consistent in that regard. some of those racial gerrymandering cases you descendents of the court shouldn't have policed those. if the court were to apply the same standard to racial partisan gerrymandering would you be in favor of judicial --

>> guest: the greater benefits would flow from having a simple rule in both cases. the glitch in history was the original gerrymandering case was the tuskegee alabama where the gerrymandering was designed to exclude flags from participating from voting in municipal government and later on the court applied the same moral to gerrymanders that were designed to give minorities equal representation when they had been the victims of discrimination. i dissented in some of those cases because i thought the basic rule of the quality should not prevent rules designed to equalize the minority voters in charge. having made racial gerrymandering whether pro-minority or anti-minority a violation to the constitution it seems to me you should simply

apply the same rule that you applied in race cases and political cases and could be easily solved. and i should mention the fight and all are gerrymandering cases whether or not we can develop standards that nobody, no member of the court has actually said on the merits this practice is justified. even justice scalia who is the strongest opponent of developing a judicial ruling against gerrymandering does not defend the practice on the merits. >> host: this is a practice that all justices say can be unconstitutional that people like bill gates and others on all sides of the spectrum say the main local problem the country today in the courses there is no judicial solution. you do give examples of gerrymandering the book with his illustration and you tell a great story of how you insisted on including this illustration in the judicial opinion. chief justice burger consider

was too expensive and it would cost $3000. you are saving the courts for money. what is it about this district that struck your notice? >> guest: well if you look at it closely you can see some of these districts just don't make any sense at all. district five for example several districts are without any rational justification. i still -- tell the story of an election involved. this is another instance where it may benefit one party today but elections may change and that particular map benefit benefited the democrats if i remember correctly and even though ronald reagan was very popular in the following election the gerrymandering put

the democrats in control. >> guest: i should say i sit gerrymandering someone corrected me and said it could be pronounced gerrymandering because elbridge gerry was the administrator of this. >> guest: he was the governor massachusetts at the time. i guess it is called gerrymandering. but it is funny. i think it's generally called gerrymandering but we tell the story of with less than the majority of voters is able to retain control of the state by drawing this strange shaped districts they did. he is the originator of the practice as far as i know. and it bears his name. >> host: the district looked like a salamander if i remember correctly. >> guest: he described it as

it did look like a salamander. >> host: explain to us why this is a serious problem. you can have a situation where a minority of state voters controls a majority of state seats. >> guest: that's right and actually i'm not sure but i have been told i believe that the majority of the voters voting in congressional elections actually were democrats who voted democratic but the republicans got the majority of the seats. >> host: remarkable. someone suggested that might also be a violation of the republican form of government clause that says all states have to have a republican form of government which means majority rule. >> guest: is certainly inconsistent with what we think should be the view that the majority should be able to have a majority of representatives in the house.

>> host: this texas matthews show, think this is the one and show versus reno and the joke was that snakes down it gets bigger and then thin and big again in the joke was if you drove down the district with both carter's opinion would kill every person in the district. this is the shell fico reno and the court struck it down as unconstitutional but political gerrymanders can't be challenged. >> guest: the democrats came up with the same thing saying the candidate thing about it. >> host: you expressed they will adopt them and you say in your prologue the soundness of each will become more and more evident and ultimately each will be adopted. do you believe that citizens will adopt the anti-gerrymandering amendment once people realize the significance of the problem? >> guest: i don't know how much time elapsed before they do it but you know texas for a long

time was a democratic state and then it became a republican state after the civil rights legislation was adopted. other states have changed too in one of the things that made us change his dissatisfaction with the abuse of power that the majorities have engaged in. >> host: i think that's what happened in california and arizona were were independent commissions were bipartisan forms embraced by both parties but it's tricky for incumbents to vote for it. is it possible we could have, continued at the situation at least in the short term where there is this big political or constitutional problem but no congressional or judicial amendment? >> guest: i think that's right. >> host: which is frustrating. i think we are going to take a short break and return in just a moment to continue talking about this wonderful new book "six amendments" how and why we should change the constitution.

>> host: justice stevens you're especially passionate about the subject of campaign finance reform and do you propose a constutional amendment that says the following come neither the first amendment nor any other provision of this constitution shall be construed to prohibit congress or any state from imposing reasonable limits on the amount of money that candidates for public office or their supporters may spend in election campaigns? in the chapter you say this is consistent with the history of the first amendment and you know president teddy roosevelt proposed a bill was passed as a corporation should be treated differently than individuals when it comes to campaign

spending. tell me first about the history of the first amendment on campaign spending in my think it's appropriate to create -- treat corporations and nonvoters differently than voters in elections. >> guest: well, because the framers decided that the voter should elect their representatives. i think that in the history it emphasizes the fact that corporations don't vote and they have business purposes that motivate most of the actions. i think a lot of the debate and this is a united case and in other cases is whether or not corporations should be allowed to spend the general funds or the special organizations that their shareholder support. to spend as much money as they

do but actually as i reflected on it i don't think it's just a corporate problem. although that has gotten most of the attention. i think individuals also get involved in election contests in jurisdictions where they do not have the right to vote. it does seem to me that one of the key cases the court overruled in citizens united was often against the chamber of commerce in which michigan put a prohibition against corporate contributions but actually it seems to me that what they were really concerned about is money coming from noninitiative sources and of course corporations generally represent interests, out-of-state interests frequently. it does seem to me that there is an important difference between the right to participate and

support candidates that you have a right to vote for in candidates from other jurisdictions. the holding that is critical in my chapter on this issue is part of the decision in buckley against vallejo that was decided the year i came on the court but before it was decided when i came on the court but i was not eligible to vote and argued before it. in that case the court said it violated the first amendment to try to limit put reasonable limits on campaign expenditures. justice white dissented and he was the only justice who did. the holding has been followed

consistently -- excuse me. in the years following that decision the court has been consistent in holding that limitations on campaign expenditures are impermissible and interfere with the quality is as speech that is used in campaigns. i think in order to correct the error and the citizens united case itself you basically have to correct the prohibition on the use of expenditures which does require in my judgment a constitutional amendment. the court has been almost unanimous in prior years in its prohibition against limitations on expenditures. >> host: the great power of his chapters inside that you just shared is the difference between voters contributing in

the current election and nonvoters including corporations and foreigners contributing to other people's elections. i was central to your criticisms of mccutcheon. the court began by saying this was about the right of individuals to support their own candidates but you told congress recently that that's not right that they were actually trying to contribute money for other people's elections. tell us more about your criticisms of the mccutcheon case. >> guest: that's exactly true and of course the mccutcheon case was decided after i had written a chapter but i have included the word reasonable in my proposed amendment because i think that the actual limits that were imposed at the time of the buckley decision may well have been designed to protect incumbents. i don't think justice white discuss that possibility in his dissent but i think if the limits are placed too low it

could be a valid argument if they are favoring an incumbent. but that is why i said there should be the reasonableness requirement. which i think would solve the problem because i do think that if congress focused on reasonable limits, and i don't think there's any danger that my former colleagues would actually conclude that any limits whatsoever is unreasonable after an amendment was adopted to correct the heart of the problem. >> host: now the objection of course is that reasonableness is not self defining and judges would have to decide what was reasonable. adam like would take from the maritimes asked you a question. he said with a reasonableness requirement allow restrictions on "the new york times" ability to write an editorial on behalf of any candidate? >> guest: my response is twofold. first of all i don't think such

a restriction would be reasonable but it isn't necessary -- necessarily the court that would be defining reasonableness. the court would be reviewing a congressional decision as to what it thought was reasonable and of course there would be a presumption that the choice congress made was permissible because you would defer to the legislative judgment at least in the first instance. if it was so obviously if they allow different limits for different candidates it could be unreasonable but i really think the amount of discretion that word would permit congress to exercise would be far different from the present rule which says any contribution whatsoever is impermissible. >> host: what would be an example of an unreasonable limit? >> guest: lsa say one that said, well there are two or

three examples. one that prohibited newspapers from endorsing candidates. one that provided the greater latitude for incumbents than on incumbents. one that provided a different amount for wealthy candidates then different financial circumstances not to be an justification for allowing different amendments, would not be a reasonable action. >> host: in your citizens united pisanti gave the example of how the press is different than the first amendment's press clause itself suggest newspaper should be treated differently than other port -- for-profit corporations. >> guest: seems to me the existence of the press blog might provide justification for treating press differently than the candidates themselves. >> host: is that also your answer to the question that was

asked of benzo solicitor general kagan could you restrict the circulation of a book? >> guest: i would think so. i suppose i might have trouble defining whether it's been long enough to be a book but i think a lot of these problems, theoretically you can come up with an answer to every hypothetical but when you actually have concrete proposals in front of you, you can really identify what's unreasonable without much difficulty. >> host: one of the many interesting things to learn from his chapters are discussion of president obama's statement of his state of the union that citizens united would open the floodgates of foreign money into u.s. elections. justice alito famously shook his head and said not sure which one oliver youtube but you say president obama was actually correct in his description of the possible extension of citizens united to strike down restrictions on foreign

donations in u.s. elections. the supreme court recently refused but you are concerned the logic could strike them as limits. >> guest: well i think at that time in may after the decision that was a reasonable interpretation of the decision and i certainly in my dissent suggested it was a possible interpretation. as a developed later in a case that i cited at some length and discuss at some length in the book a three-judge court held that it was permissible to prohibit citizens of canada and israel from making contributions to elections in the united states. not just contributions but expenditures. they could not spend their own money and support of a candidate. the underlying rationale for the three-judge district court decision written by judge

kavanaugh of the district of columbia court of appeals basically was there was a justified interest in the government running the election, having the election -- control of the elections and not have outsiders come in and tell americans and that the canadians cannot spend their money. it's precisely the same rationale that would support michigan's decision that we wouldn't let citizens from indiana or wisconsin spend unlimited sums of money trying to influence our elections. >> host: how would you state the constitutional dimensions of that principle? do you states have an interest in preserving the integrity of their own elections? >> guest: there is a powerful state interest in having fair elections and it's an interest that can trump the first amendment right in certain situations.

and the court in its views on this issue have treated the first amendment issue as trumping everything else. i think they failed to give adequate weight to the interest in people running their own sh show. >> host: people running their own show and fair elections goes back to this theme throughout the book of neutrality nonpartisanship and the government has an obligation to be natural and fair. you really believe that strongly. >> guest: that's right and in fairness and the conduct of the elections should enable the governments to adopt rules that give the rival candidates an equal opportunity to persuade the voters. >> host: now the court in citizens united and recently in mccutcheon beat -- focuses to say quid pro quo. i won't give you a lot of money.

is that a broad enough view of corruption or did the framers have a broader view? >> guest: the basic mistake, if the courts review of corruption is really the only justification for regulating campaign financing you could just rely on the bribery laws which would take care of it but there is a more powerful interest that has nothing to do with corruption in having all elections fair and giving each candidate an equal opportunity to compete. it's not a question, it really is a question of identifying reasons other than corruption for imposing requirements of fairness in a contest between opposing parties. it's the same interest that justifies limited speech and litigation. when you have an argument before the supreme court you can't go on and on forever.

the court imposes rules that limit your opportunity to persuade and they are fair to both parties. the main criterion is fair procedure, fair treatment of contestants. >> host: you give the example of presidential debates and say it wouldn't be fair to give the richest candidates more time. >> guest: it dawned on me in watching one of the republican debates in a primary before the last election that certainly the moderator has a duty to treat candidates equally. >> host: one thing that struck me in the book is so many of your principles fairness are also related to constitutional history. you talk in your citizens united dissent about the framers concerned that the government be responsive to all the people and not just a few. >> guest: that's exactly right. >> host: does this have any biographical source? i hadf interviewing you years ago when he talked about your experience

on the commission investigating alleged corruption in chicago for case where a judge was alleged to have thrown a case in exchange for a bribe and you to great acclaim said at the dissent had been issued in the case the whole scandal might have been avoided. does this concern with neutrality and concern with fair treatment date back to experiences like back? >> guest: i suppose it does. in that case, it also involved the appearance of neutrality because certainly judges should not be buying stock recommended to them by litigants which is what happened to a couple of supreme court justices. but the appearance of impartiality is very important in the process too. >> host: too. >> host: well we have two more big topics to talk about and the

first one is the death penalty. you propose an amendment on that score as well and am going to use my high-tech filing system to find it here. you say, here we go. excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments such as the death penalty. so you would add the words such as the death penalty to the existing words at the eighth amendment. you are not always of the belief that the death penalty violated the constitution? what made you change your mind or feel the constitution should be amended to prohibit that penalty? >> guest: well first of all death cases are a form of litigation that federal judges, supreme court judges, nobody likes. they are very very unpleasant, expensive, time-consuming litigation. anyone who is exposed to capital litigation for as long as i was is bound to develop a distaste

for the whole process and of course the things that changed my own views particularly are the fact that there is now available the punishment of life imprisonment without parole so you don't need the death penalty to avoid, to deter future misconduct by people who have been convicted. a second thing that has happened over the years is that the court has adopted a number of procedures which actually strengthened the hand of the prosecutor in the penalty phase hearing which seems to me tilts the scales in an area of the law in which the scales should tilt the other way. you should use extra precaution to avoid error. a third thing that happened is that dna evidence has made it

clear that there are number of people, have been a number of people on death row who should never have been there. they were innocent and if it's therefore true that every time you sentence somebody to death you run the risk that you may make a mistake, that you should not, the system should not allow the possibility of a mistake in a capital case. and the other thing that has happened over the years is that the court has developed rules that require states to impose the death penalty in a totally painless manner. originally years and years ago the death penalty was a theory that whatever the defendant did to his victim he should suffer the same consequence. but you can't do that. you cannot impose painful

punishment even administering the death penalty, which means that the capital defendants basically goes there and anesthetic process that makes the penalty painless so it is not a form of retribution that does equal the pain that they defended impose on his victim. but the critical thing for me frankly is that the more i thought about it, because everyone agrees because there is some risk of error even in the wonderful judicial system we have. as long as there is a risk of error that an innocent man in fact may be executed and put to death by the state and its state and is in fact innocent, that is not an acceptable risk that a civilized society should accept because the gains do not justify

taking that kind of race. >> host: you quote your colleague justice scalia saying the risk is infinitesimal i think .02% i think figure something like that. i take it that's tilt too big of a risk for you? >> guest: that is and i think anyone has to be troubled by that possibility. of course he can't be terribly proud of the fact that the united states is ranked with three or four nations that have a different form of society than we do. whereas most of the countries in western europe have long ago abolished the death penalty. >> host: you talk about the fact that all members of the court now think it's not permissible to inflict an execution that's deliberately intended to cause pain and you talk about the mix of chemicals that were used until recently to try to minimize pain and yet right now we are having a dramatic debate about whether the existing chemicals do in fact torture