Despite high-profile death sentences like Scott Peterson’s in California, public support for the death penalty is falling. The reasons lie partly in mounting evidence that innocent people have been condemned andin some casesput to death. Supreme Court Justice Sandra Day O’Connor said in a speech in 2001 to a group of women lawyers in Minnesota that the system may well be allowing some innocent defendants to be executed. And a recent report by the nonprofit Death Penalty Information Center, Innocence and the Crisis in the American Death Penalty, describes how a shift in public perceptions of capital punishment has indeed been taking place. The report notes, for example, that death sentences have dropped by 50 percent over the past five years and that the numbers on death row have also fallen.
One factor helping to change previously held views on the death penalty came through the dramatic action of former Republican governor of Illinois, George Ryan, in 2000. After the 13th exoneration of a prisoner in his state, he imposed a moratorium on further executions. Over a dozen other states have become sufficiently concerned about the danger of executing innocent persons to appoint commissions to study how capital punishment is administered in their jurisdictions. And recently two states, Kansas and New York, struck down their death penalty laws. In 1997 the American Bar Association, which takes no position on the death penalty per se, nevertheless passed a resolution calling for a moratorium to minimize the risk that innocent persons may be executed.
A second factor that has highlighted the innocence question stems from the widening acceptance of DNA testing that has, as the report puts it, exposed some of the system’s fatal flaws. Although its use in homicide cases is limited to those in which there is biological evidenceabout one-fourthfor some prisoners it has proven to be literally a life-saving investigative tool. Many states have yet to enact legislation granting death row prisoners the right to this kind of testing, but the Justice for All Act, which became federal law last October, represents a move in the right direction. It both creates a DNA testing program and authorizes $25 million over five years to help states pay for post-conviction testing. It also mandates preservation of biological evidence in federal cases. Richard Dieter, the Death Penalty Information Center’s executive director, told America that the act provides an incentive program whereby states can receive funds for DNA testing if they have a system which, among other requirements, preserves evidence.
The act also takes a positive step toward ensuring effective counsel in death penalty trials by authorizing grants to states for improving the quality of defense representation in capital cases. The lack of effective counsel was underscored by Supreme Court Justice Ruth Bader Ginsburg in April 2001, when she said that people who are well represented at trial do not get the death penalty.
But the Innocence report notes that so far, because of what it calls official inertia, only slight reforms in the administration of the death penalty have been made: More profound changes, responsive to the enormity of the problems revealed in recent years, have so far eluded the system. Similarly, although judges often have the opportunity to instruct juries about the availability of a sentence of life without parole as an alternative to the death penalty, the option is not always explained to juries in capital cases. Polls have shown that support for life without parole for first-degree murder has grown significantly as an alternative to execution, so that now they are within 4 percentage points of each other. In 1997 the difference was 32 percentage points in favor of the death penalty.
The U.S. Catholic bishops have long advocated ending capital punishment. When the 100th person was exonerated in April 2002, Cardinal Theodore McCarrick, chairman of the Domestic Policy Committee of the U.S. Conference of Catholic Bishops, saw this as yet another sign that our nation should turn away from the death penalty. He went on to say: Pope John Paul II [and] the Catechism of the Catholic Church...have made it clear that our society has other ways to protect itself from those who commit terrible crimes. Shielding the innocent from execution at least represents a start in the direction of the wider goal of ending capital punishment once and for all. Overcoming the official inertia of legislators who fear being labeled soft on crime should be the next step.
