Death penalty under siege
Errors in cases spur nationwide review of fairness, but not morality, of sanction.
WASHINGTON — Demonstrable imperfections in death-penalty justice are causing a chorus of US leaders to call for a reexamination of the nation's most profound criminal sanction.
Not since the Supreme Court reinstituted the practice in 1976 has the death penalty been so under siege. Illinois imposed a moratorium on executions in January, and the New Hampshire legislature voted to repeal the state's death penalty last month - though the governor vetoed the bill.
A study released this week found that two-thirds of death sentences are reversed on appeal due to legal errors. Even such conservatives as televangelist Pat Robertson are calling for law enforcement to make greater use of DNA testing and other new technologies that could exonerate innocent prisoners.
At issue is not so much the morality of the death penalty as the fairness of capital cases. Even death-penalty opponents say the political question today is how to revamp the system, not how to get rid of it.
"That's, I think, a shift in the terms of debate," says Richard Dieter, director of the Death Penalty Information Center, based in Washington.
The death penalty is likely to be an issue in the presidential campaign this autumn, although the presumptive candidates' positions on the issue are not all that different. The reason: Texas has executed more people, by far, than any other state.
Gov. George W. Bush has said that he is confident that everyone put to death in Texas under his watch has been "guilty of the crime charged." Still, on June 1, he postponed an execution 30 days to allow for DNA testing.
Vice President Al Gore supports the death penalty and has rejected a call for a national moratorium on capital punishment. He says he supports DNA testing in cases where it can make the application of justice more fair.
"If somebody is unjustly executed, that is one of the worst tragedies you can imagine," Mr. Gore said.
As Democrat Gore's support shows, the death penalty remains broadly popular in the United States. About 66 percent of respondents to a recent Gallup poll approved of capital punishment.
But that support has been dropping in recent years as the fear of violent crime has abated in many cities, and stories about death-penalty mistakes have increased.
As recently as 1994, 80 percent of Americans approved of capital punishment, according to Gallup.
Some opponents of the death penalty date the recent groundswell of controversy to last year, when the Nebraska legislature voted for a state moratorium on the practice. The governor vetoed the bill.
Then, Illinois Gov. George Ryan, a pro-death-penalty Republican, declared a moratorium on capital punishment in his state beginning Jan. 31, 2000.
He cited statistics which show that 13 Illinois death-row inmates have had their convictions overturned since 1977 - outnumbering the 12 prisoners the state executed during the same period.
Nationwide, 87 innocent people have been released from death row as a result of DNA tests, recanted testimony, or other new evidence, according to the Death Penalty Information Center. That amounts to 1 reprieve for every 7 prisoners executed during that time.
And two-thirds of the 5,760 death sentences imposed in the US between 1973 and 1995 were reversed due to errors, according to research by death-penalty opponent James Leibman, a professor at Columbia University School of Law in New York. Among the most common errors: "ineffective assistance of counsel at a very egregious level."
All this has led conservatives from Rep. Henry Hyde (R) of Illinois to columnist George Will to publicly acknowledge that their confidence in the fair application of the death penalty has been shaken.
"There have always been a lot of conservative voices who opposed the death penalty," says Michael Radelet, a professor at the University of Florida in Gainesville and co-author of a study of death-penalty cases. "The pope has been called many things, but 'a liberal' is not one of them."
Is the system working?
All these studies have yet to come up with a definitive case of an innocent person who was executed, say proponents of the death penalty.
In that sense, they say, the system's error rate can be seen not as a flaw but as evidence that the layers of appeals are winnowing out suspect cases, as they are supposed to do.
Congress, for its part, may act this year on the twin controversies of DNA testing and incompetent lawyers.
A Senate bill introduced by Sen. Patrick Leahy (D) of Vermont would ease prisoner access to DNA tests, which attempt to use genetic information left at the scene of a crime as a means of identification.
It would also withhold millions of dollars in federal crimefighting grants from states that do not move to improve the quality of capital-case lawyering.
Speaker of the House Dennis Hastert (R) of Illinois says that he supports hearings on a House version of the legislation.
"We have to make sure only guilty people end up on death row," he said last month.
(c) Copyright 2000. The Christian Science Publishing Society