Calculating the Risk
Commentary: Does the death penalty protect innocent life, or endanger it? As fatal errors escalate, voters may reconsider capital punishment.
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Is the death penalty doomed? In January, Republican Governor George Ryan of Illinois suspended all execcutions in that state after 13 death row inmates were found to have been wrongly convicted. In February, Gallup reported that support for capital punishment had declined to its lowest level in 19 years. In March, New Hampshire lawmakers passed the first legislation since 1977 repealing the death penalty. In April, Pat Robertson endorsed a nationwide moratorium on executions, and George Will questioned whether the justice system can ever ensure that only the guilty receive death sentences.
But like a temporary stay of execution, these developments raise false hopes for death penalty opponents. Political pressure to retain capital punishment remains intense. While two-thirds of Illinois residents support the moratorium in their state, a similar majority nationwide still approves of executions. Those numbers suggest that roughly one in three people is willing to suspend the death penalty in light of wrongful convictions -- but is unwilling to abolish it. If the next scheduled execution is to be stopped, these are the people who must be addressed.
These ambivalent types -- and I'm one of them -- don't hold all human life sacred. We're willing to institute reforms when the death penalty discriminates improperly among the guilty, but we aren't willing to abolish it. What we hold sacred -- so sacred that we will kill to avenge it -- is innocent human life. We will never renounce capital punishment on principle. But we will stop it in practice if we are persuaded that the death penalty, by killing the falsely convicted, is more likely to take innocent life than to save it.
This argument will strike many abolitionists as a sellout, since it doesn't challenge the system's premise. But that's why it may succeed where other arguments have failed. It requires no epiphany on the part of voters or politicians. It simply shifts the calculus of risk.
A decade ago, the homicide rate was 50 percent higher than today, and the death penalty's popularity was near its peak. Many voters were afraid and angry at stories of killers being paroled. They saw capital punishment as a way to protect society. In 1988, they voted against Michael Dukakis in part for allowing Willie Horton, a convicted murderer, to leave prison for a weekend during which he raped a woman. In 1994, they voted out another death penalty foe, Governor Mario Cuomo of New York. Other politicians, feeling the pressure, embraced the death penalty.
Today crime is down, and many states are sentencing killers to life imprisonment without parole. Letting murderers live is perceived as less of a risk to innocent people. Those who want to end the death penalty must now capitalize on this opportunity -- by persuading voters that capital punishment itself endangers the innocent.
That's where DNA comes in. It used to be impossible to prove that the legal system produces wrongful convictions. But in the last seven years, DNA tests have exonerated more than 80 prisoners, including eight on death row. The cost of the death penalty to innocent life is becoming quantifiable. And it is going up.
This steady escalation of the known number of errors -- and the public's growing suspicion that many of those already executed will turn out not to have been guilty -- threatens to shatter the pro-death penalty majority. Since 1995, the share of Gallup respondents who think an innocent person has been sentenced to death has risen from 82 to 91 percent. In some states, the percentage of people who oppose the death penalty because they fear it will be administered to someone who was wrongly convicted has doubled. In Illinois, surveys show enthusiasm declining for capital punishment as more and more prisoners are exonerated.
The innocence question has cracked the wall of death penalty solidarity on the right. On April 6, George Will declared that Actual Innocence, a book documenting recent exonerations, "compels the conclusion that many innocent people are in prison, and some innocent people have been executed." Based on this, Will argued, "Conservatives, especially, should draw this lesson from the book: Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order." The next day, Pat Robertson cited the exonerations in Illinois as evidence that "a moratorium would indeed be very appropriate" because the death penalty, while moral in principle, was being administered unreliably. In New Hampshire, several conservative, pro-death penalty legislators said that concern for the wrongly convicted, not moral reßection, persuaded them to vote to abolish the practice in that state. In Minnesota, Governor Jesse Ventura drew the same conclusion. "I do not support the death penalty anymore," he announced in February. "Imagine what you'd feel like if someone were put to death, and a year or two later, [you] found out that the person didn't do it."
One governor whose views have remained unchanged is George W. Bush. As of May, he had already presided over 127 executions -- more than any other governor -- and another dozen were scheduled to die by July. The unparalleled Texas body count, coupled with Bush's presidential candidacy, creates a story the media can't ignore. But the initial complaints leveled at Bush -- that some of the condemned prisoners had been battered or mentally ill or underage when they committed their crimes -- didn't trouble most Americans enough to hurt Bush in the polls. Explanations will never make the death penalty a potent issue. Error will. Swing voters may think twice about voting for Bush if they are convinced his conduct of the state's power to kill is recklessly endangering the innocent.
Since 1977, seven death row inmates in Texas have been exonerated, and a group of Texas lawyers is launching a project to unearth evidence that other defendants have been wrongly convicted. The more prisoners the state kills, the more Bush risks being caught in a fatal mistake.
In May, the media began to focus on reports that innocent men may already have been put to death on Bush's watch. Consider the case of David Spence, sentenced to die for killing three teenagers near Waco, Texas, in 1982. As his execution date approached, Bush and his appointees on the Texas Board of Pardons and Parole were presented with disturbing evidence that suggested they had the wrong man. Two key witnesses who claimed that Spence had helped them murder the teenagers later admitted he was not involved, saying they had implicated him to escape execution. Prosecutors were found to have withheld evidence showing that the alibi of another suspect who had bragged about committing the murders was bogus. Even a lead detective in the case came forward, saying he believed Spence was innocent. Yet Bush refused to intervene. On April 3, 1997, Spence was put to death.
Bush has repeatedly insisted that he's "absolutely confident" not a single inmate whose execution he authorized could have been innocent. "I haven't been wrong in any of the incidences," he boasted in one debate. As evidence to the contrary grows, however, voters may begin to find Bush's confidence callous and obtuse. Bush is already in trouble for mocking a clemency plea by Karla Faye Tucker, a born-again Christian whose execution he approved two years ago. At a debate in California in March, Bush chuckled and grinned at a question about Texas lawyers who had slept through murder trials. The death penalty could become a ßash point for voters' doubts about his maturity.
If death penalty opponents can make Bush pay for his apparent indifference to the loss of innocent life, they will find more politicians receptive to reforming the system. More states will make dna testing available to inmates who request it. More will require confessions and lineups to be videotaped. More will provide adequate resources to public defenders and court-appointed lawyers. More will establish "innocence commissions" to investigate erroneous convictions. And more will suspend executions until they are confident that all of the inmates they were planning to kill are guilty.
Many supporters of the death penalty have no trouble with temporarily halting executions. They believe opponents are outsmarting themselves by calling for a moratorium, since reforms will make the system so reliable that it will be impossible to abolish. But perhaps it's death penalty supporters who are outsmarting themselves. Once enacted, a moratorium shifts the burden of proof to those who would resume executions -- a burden made more difficult by Americans' distrust of the government's ability to do anything right. If people like me are convinced that we can keep real killers off the streets for the rest of their lives, we won't reactivate the death machine without enormous confidence in its accuracy. How much confidence? "We must be 100 percent sure in these death penalty cases," said Rep. Ray LaHood, an Illinois Republican and death penalty supporter, as he unveiled a package of reforms last spring. Good luck getting to 100.
