The federal government's first execution in 38 years comes at a time when DNA and other evidence has exonerated enough death row inmates to shake public confidence in the system.
Timothy McVeigh--an unrepentant, confessed mass murderer whose guilt was utterly clear--deserved the death penalty if anyone ever did, and an overwhelming majority of Americans favored his execution. But according to a recent Gallup poll, support for capital punishment as an institution has slipped from a peak of 80 percent in 1994 to 65 percent this year, in part, no doubt, because falling crime rates have eased public fears. When pollsters specify life imprisonment without parole as the alternative, support for the death penalty drops to 52 percent. Most respondents do not believe that the death penalty deters murders-which is "the only reason to be for it," President Bush said last year. "I don't think you should support the death penalty to seek revenge," he added.
Bush's comments may have dismayed those whose convictions call for executing the worst killers "in order to pay them back," in the words of Walter Berns, a resident scholar at the American Enterprise Institute. Meanwhile, equally resolved are religious objectors and others whose morality rejects all executions as immoral and "uniquely degrading to human dignity," in the words of the late Justice William J. Brennan, Jr.
Between these warring groups are millions whose attitudes can be swayed by evidence of the death penalty's actual impact on violent crimes. Does the death penalty save innocent lives? Does an unacceptable risk of executing innocent, mistakenly convicted defendants accompany it? Does the legal process discriminate against racial minorities and poor people when choosing which murderers to send to death row? Should we be in the company of most European countries--where the death penalty has been abolished and is widely seen as a barbaric blot on America's human rights record--or of autocracies like China, Iraq, and Iran, where executions are still common?
The conventional wisdom among most criminologists has long been that there is no evidence that the death penalty deters murders. This has seemed especially plausible in recent decades, when so tiny a percentage of murderers have been executed that a calculating killer might imagine that the risk of being put to death was fairly remote.
But a new statistical study by three Emory University economists of most of the 717 executions over the past 25 years challenges the conventional wisdom with a sophisticated argument that the numbers show that "each execution results, on average, in 18 fewer murders," give or take 10. Meanwhile, the pace of executions--especially in places like Harris County, Texas (home to the city of Houston)--has quickened to the point that a killer might well see execution as a genuine risk. (McVeigh is a little different; his execution could increase the risk of future carnage because many terrorists crave martyrdom.)
Any doubt about deterrence, death penalty supporters argue, should be resolved in favor of the innocent lives that might be saved. But what about mistakenly executing innocent defendants? Based on new evidence that either proved their innocence or cast doubt on their guilt, some 95 inmates have been released from death row since 1973. Republican Gov. George Ryan of Illinois declared a moratorium on executions 16 months ago because of what he called his state's "shameful record of convicting innocent people and putting them on death row."
Death penalty supporters respond that such cases show the system correcting its own errors and stress that nobody has proved the innocence of any of the 717 people executed since 1976. True, but misleading: After an execution, the exhausted defense lawyers and others typically have little remaining incentive to dig up evidence of innocence and when they do, they often face resistance from state officials who are more interested in protecting themselves than in the truth. Prosecutors in Virginia, for example, are fighting--so far successfully--an effort by newspapers and others to make DNA evidence available for tests that could conclusively prove the innocence (or guilt) of a coal miner named Roger Keith Coleman, who insisted on his innocence up until his 1992 electrocution for the rape-murder of his sister-in-law.
The surest way to increase whatever deterrent effect the death penalty may have--executing a much higher percentage of convicted killers, and doing so much closer to the time of sentencing--would also, of course, produce a commensurate increase in the risk of executing innocent people.
Meanwhile, many defendants who go to trial for their lives are represented by lawyers who are inexperienced, unprepared, overburdened, paid too little to investigate the facts, and even, in some cases, drunk or asleep during portions of their trials. And while the FBI's failure to turn over more than 4,500 relevant documents to McVeigh's defense lawyers cast no doubt on his guilt, it demonstrated vividly the government's penchant for fouling up even the most momentous of cases and fed suspicions that worse errors and abuses may be common in cases far from the media spotlight.
Then there are the critics who see the death-sentencing process as tainted by racism. They scoff at Attorney General John Ashcroft's declaration last week that a long-awaited Justice Department report shows "no evidence of racial bias in the administration of the federal death penalty." The critics stress that three-fourths of those charged by federal prosecutors with capital crimes have been minorities and that only two whites remain among the 20 men under federal death sentence--one of whom, Juan Raul Garza, is to be executed on June 19 for three drug-related murders. And while studies of the 38 death-penalty states show that white killers are as likely as black killers to be sentenced to death, those who kill white victims are far more likely to end up on death row than killers of blacks.
All in all, enough doubts have been raised to give new momentum to proposals designed to make the system more foolproof and fair. These include a bill in Congress called the Innocence Protection Act, which would encourage states to provide better lawyers for capital defendants and to give death row inmates access to any DNA evidence that might exonerate them. Most or all death-penalty states are considering similar proposals. Some are also debating whether to bar execution of retarded defendants. (The Supreme Court has agreed to decide next year whether such executions are unconstitutional.) And even some death penalty supporters, such as Republican Gov. Frank Keating of Oklahoma, would now require proof of guilt to a "moral certainty"--a higher standard than "beyond a reasonable doubt"--for imposition of the death sentence.
The movement to abolish the death penalty still seems a long way from winning majority support. But the push to reform it may just be beginning.