Governors soften on death penalty

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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