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."
