Fatal error

Notoriously, a substantial majority of Americans supports the death penalty. One indication of this sobering fact is that no presidential candidate from either major party is willing to express even tentative doubts about capital punishment, lest he be accused of being "soft on crime." At no time was this more apparent than during the 1992 presidential race between George Bush and Bill Clinton, when then-Governor Clinton made a point of interrupting his campaign for the White House to return to Arkansas to preside over the execution of a retarded man. Since 1977, when the Supreme Court permitted the reinstatement of the death penalty, few elected officials at any level have been willing to risk the wrath of the public by calling the gruesome practice into question.

Until now. Last month Illinois Governor George Ryan, a moderate Republican who in fact favors the death penalty, halted executions in his state. Ryan felt morally compelled to act when confronted with the astonishing number of Illinois death penalty convictions that have been overturned by subsequent judicial inquiries. Since 1977, thirteen death row inmates have had their convictions reversed. "I cannot support a system, which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life," Ryan said. "Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate."

Despite the overwhelming facts supporting his decision, Ryan’s action still required political and moral courage, especially coming from someone whose party has made supporting the death penalty almost a sacred duty. (Texas Governor George W. Bush, still the leading candidate for the Republican presidential nomination, has presided over 119 executions.) But more important, Ryan’s obviously principled stand points to the inherent problem with capital punishment even for those who think it is necessary and just: the egregiously flawed criminal justice system that determines who ends up on death row in the first place.

It would be good if Governor Ryan and others who support capital punishment in the abstract could be convinced that, as John Paul II has recently argued, the death penalty is not needed to protect society, and the state’s willingness to take life undermines the sanctity of all life. Short of that unlikely reversal of opinion, however, it may still be possible to convince the American people and their elected officials that the "moral certainty" concerning guilt that Governor Ryan rightly demands is nearly impossible to attain in many cases. It is especially hard to attain given the feeble quality of legal representation poor and minority defendants are too often accorded, especially from court-appointed and poorly paid private lawyers.

One indication of how haphazard the defense work can be is that nine of the thirteen convictions overturned in Illinois benefited from the work of enterprising journalism students at Northwestern University. The students turned up exculpatory evidence the original lawyers could easily have discovered but because of incompetence or neglect did not. Moreover, the Chicago Tribune reports that 33 death row inmates-Illinois now has 161 people awaiting execution-had been represented by lawyers who have been either disbarred or suspended. The story is no prettier in states where the death penalty is even more enthusiastically embraced. In Florida, for example, twenty death row convictions have been reversed since 1977.

Principled proponents of the death penalty cannot ignore the fact that too many people now awaiting execution have been given inadequate-and sometimes criminally negligent-representation. Since 1973, eighty-five death sentences have been overturned nationwide, some only hours before the sentence was to be carried out. Even though persons accused of murder have had the right to legal representation since the Supreme Court’s famous Gideon v. Wainwright decision in 1963, rights are translated into realities only when there is the political will to do so. Many states have highly professional public defenders available to the poor, but defendants do not always avail themselves of these services-that seems to have frequently been the case in Illinois. And even if there are public defenders, they may not be sufficiently skilled or properly funded. Texas has no public defenders at all; defendants must rely on court-appointed lawyers who are given few resources with which to mount a defense. Congress itself, as recently as 1996, eliminated funding for twenty Death Penalty Resource Centers, and state legislatures continue to pass measures to streamline the appeals process for those facing execution.

What is to be done? Outrage over wrongful convictions, including convictions orchestrated by police and prosecutors, has dramatically changed the nature of the death penalty debate in Illinois, and Ryan’s moratorium has been widely applauded. Nationwide, the situation may also be ripe for rethinking. Death penalty opponents must remember, however, that the practice will only be abolished when a majority of Americans becomes convinced it is wrong or hopelessly flawed in practice. That change is most likely to come about in the political arena, rather than through the courts.

Despite the publicity the death penalty attracts, it is safe to assume that most Americans are not now fully aware of how chaotic and arbitrary the criminal justice system can be. Opponents should press the case put forth by Ryan, urging Americans to think again about what the death penalty entails in a criminal justice system chronically short of money, occasionally corrupt, and, like all human institutions, prone to error. With the continuing decrease in crime rates, this is a propitious time to ask Americans if the risk of putting an innocent person to death-3,625 people are now facing execution in the United States, according to the Death Penalty Information Center-is worth the satisfaction of "seeing justice done" on such an imperfect and unprecedented scale.

Published in the 2000-02-25 issue: 
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