Governors soften on death penalty

Numbers of commuted sentences, while still small, rise as fairness questions grow.

RALEIGH, N.C.

In a previous stint as North Carolina's attorney general, Mike Easley helped reserve Robert Bacon, Jr. a seat on death row at Raleigh's Central Prison.

Earlier this month, Mr. Easley came face to face with Mr. Bacon again. But this time, Easley - now governor - saw the case in a new light: Two days before Bacon faced the ultimate sanction, Governor Easley commuted the sentence to "life without parole."

Easley gave no explanation for his leniency, but he's widely believed to have acknowledged a racial disparity in the case. According to capital-punishment statistics, Easley's uncertainty about the fairness of the conviction is in fact part and parcel of an uptick in the number of death- row commutations granted by US governors and parole boards.

Indeed, the trend may be emblematic of a stirring debate from the Carolinas to California - not about the morality of the death penalty, but how fairly and accurately it's applied.

As it is, the number of commuted sentences has gone from an average of one per year since the Supreme Court reinstated the death penalty in 1976 to an average of three per year since 1999. (The one-a-year average in the 1980s is high, skewed by anti-death penalty governors like New Mexico's Tony Anaya, who once commuted five people at once.) By contrast, the recent decisions come from a broad swath of social conservatives such as Oklahoma Gov. George Keating and pro-death penalty Democrats like Easley.

"[Commuting a death sentence] is no longer a political death knell for a governor who worries he'll be depicted as being soft on crime," says Rick Halperin, head of the Texas Coalition to Abolish the Death Penalty.

To be sure, a reprieve from death row is still considered a long shot for most of the 3,716 death-row inmates. But at the same time, the recent uptick in commutations is one of a number of trends indicating that Americans - from the public to elected officials - are looking more carefully at the ultimate sanction.

While a majority of Americans still support the death penalty, that number has slipped from 77 percent five years ago to 63 percent, according to polls.

What's more, the number of executions across the country is down for two years in a row - a first since they were reinstated. Also down for the first time: the number of people sentenced to death by juries.

In addition, while only Gov. George Ryan of Illinois has temporarily halted executions - after six out of 13 death row inmates in his state were freed because of problems with their cases or because they were innocent - the moratorium has affected how many Americans view the whole capital punishment machine.

Lawmakers are sensing this shift. Next month, New Mexico will ask residents to vote on whether it should become the second state to impose a moratorium. This summer, North Carolina legislators banned the execution of mentally retarded inmates - the 18th state to do so.

In Oklahoma, top officials have taken a turn toward lenience in the past few years, administration aides there say. For one, its famously impervious parole board recommended two clemencies in the past two years - both approved by Governor Keating. Recently, he proposed reforms he says will ensure "absolute certainty" of an inmate's guilt. Like Illinois, Oklahoma has its own prison scandal brewing: A state chemist who testified in thousands of cases has been deemed mentally incompetent. At least one person has been freed because of tainted testimony.

"The governor feels there needs to be a higher standard for juries to meet in order to impose the death penalty," says Phil Bacharach, deputy press secretary. "But he also said it's possible to remedy what problems there are in the system without tossing out the whole system altogether."

Currently, Raleigh is one of the US capitals of capital crime and punishment. But in three years, governors have approved three out of the nine commutations nationwide.

In the most recent case, Bacon, a black man, was convicted for killing his white girlfriend's ex-husband. An all-white jury gave Bacon the death sentence. The ex-wife, who was convicted of planning the murder, has a chance at parole in 2009.

Death-row critics say Easley's decision to commute Bacon's sentence, despite his proved guilt, allows the question of fairness to be applied to other death-row appeals. "The problem is that, where you've got co-defendants who are equally guilty, you can't justify sentencing one to death," says Jim Coleman, an attorney for the Center for Capital Litigation in Durham, N.C. "Justice is supposed to be consistent, and what [the commutations] say is that this whole thing is arbitrary."

But by shifting from questions about the morality of executions to the issue of whether the system is just, death-penalty supporters say, abolitionists are in fact acknowledging a kind of defeat.

What's more, critics say claims of a "broken system" are wearing thin under close scrutiny. There have been inconsistencies that have led to wrongful convictions. But, according to testimony from the National District Attorney Association, the justice system has already largely repaired problems with bad lawyers and prejudiced juries. "I don't think governors have much wiggle room to be flatly opposed to the death penalty," says John McAdams, a political scientist at Marquette University in Milwaukee, who supports the death penalty. "But I think they now can actually get good publicity by scrutinizing cases more carefully."

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