Big setback, and new ire, on death penalty

Most Americans still believe in the death penalty. But a rising number of them are asking: Is it used fairly?

The answer, increasingly, seems to be no.

Academic reports have revealed persistent bias. Media outlets have publicized cases of error-prone defense attorneys, as well as the potential for new DNA and other evidence to overturn death sentences.

This weekend, in the most dramatic move of all, Illinois Gov. George Ryan emptied out the state's entire death row by handing out reduced sentences to all 156 inmates. That marks the largest commutation of such sentences since the United States Supreme Court overturned the death penalty in 1972. And it almost certainly ensures that the number of inmates on death row will fall this year for only the second time in a quarter century.

"What is going to happen is a national dialogue on this," says Hugo Bedau, professor emeritus at Tufts University and a death-penalty opponent. "We're going to be forced to talk about the facts of the death penalty."

Some of those facts are already having an effect in the courtroom: There are hints that prosecutors and juries in capital cases are treading more carefully.

Still, any proposals to fundamentally change the system threaten to founder on the shoals of America's post-Sept. 11 mentality - one in which terrorists, as well as serial killers, should pay a high price for their deeds.

"When you have these very horrible incidents, people say: 'Yeah, we have to get rid of these people' - more in sadness than in vengeance," says Bruce Fein, a Washington attorney and death-penalty supporter who served in the Reagan administration.

Yet mounting evidence of breakdowns in the system have given even some ardent death-penalty supporters pause. Since the Supreme Court reinstated the death penalty in 1976, Illinois, for example, has executed a dozen inmates. But the probings of a group of reporters, investigators, attorneys, and Northwestern University journalism students have freed 13 other death-row inmates - either because they were innocent or there were significant flaws in how they were convicted.

That led Governor Ryan, a former death-penalty supporter, to issue a moratorium on executions in 2000 and convene a commission to investigate the system. Last April, that commission recommended dozens of reforms. Without such changes, the committee recommended abolishing the death penalty altogether.

But efforts to pass these changes in the legislature failed repeatedly. And by this time, the governor's own political standing had been weakened by charges that close aides had been involved in a bribes-for-licenses scandal. (The governor himself has not been charged.)

Frustrated by the lack of progress on the political front, Ryan pardoned three death-row inmates in December. Last Friday, he pardoned four more, and Saturday, he commuted the death sentences of 153 inmates to life without the possibility of parole. Three others received shorter sentences.

"Because the Illinois death penalty system is arbitrary and capricious - and therefore immoral - I no longer shall tinker with the machinery of death," the governor said in his Saturday statement, two days before leaving office. "I started with this issue concerned about innocence. But once I studied, once I pondered what had become of our justice system, I came to care above all about fairness.... If the system was making so many errors in determining whether someone was guilty in the first place, how fairly and accurately was it determining which guilty defendants deserved to live and which deserved to die?"

Such concerns extend beyond Illinois. Last May, for example, Maryland Gov. Parris Glendening imposed a death-penalty moratorium pending a review of allegations of unfairness. Last week, a University of Maryland study found significant prejudice in 21 years of Maryland death sentences - but in surprising ways.

For one, the most obvious imbalance proved geographical. Defendants in death-eligible cases were far more likely to get death sentences in Baltimore County than in any other part of the state.

Race also played a role, although again in a more nuanced way than conventional wisdom might suggest. Looking at race alone, the skin color of defendants barely mattered, while that of victims proved decisive. Thus, defendants who killed whites were two to three times as likely to receive death sentences than those who killed nonwhites.

Moreover, racial bias popped up only at the initial trial stages - when prosecutors were deciding whether to seek a death sentence. So while judges and juries tended not to render biased sentences, the initial stacking of the caseload meant the system still worked unfairly, the study concluded.

"The tendency of prosecutors to sink their teeth into a defendant and then try to resolve the case - even when other evidence comes forward - is well known," says Roger Pilon, vice president for legal affairs at the Cato Institute, a libertarian think tank in Washington. The governor's move in Illinois "is generating a healthy skepticism about the quality of our prosecutorial system."

Still, healthy skepticism may not change much. Observers say states such as Texas and Oklahoma are almost certain not to investigate their systems thoroughly the way Illinois has. Even Maryland looks unlikely to make wholesale changes, with memories of last year's sniper attacks still fresh. Its governor-elect, Robert Ehrlich, has pledged to lift the death-penalty moratorium once he takes office.

"These things go in waves, and it's hard to say where this will go," says Mr. Pilon of the Cato Institute. But "you have the sniper cases that come along - the serial murderers - and these cases will continue to generate demand for the death penalty."

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