A Times Editorial

Attitude shift in death penalty

Illinois Gov. George Ryan has drawn political ire because his death row commutations were so sweeping and were issued as he left office under an ethical cloud. His action has drawn national notice, however, because of the extent to which he fits an emerging American profile on the death penalty. Ryan thinks death is a just punishment, but he can't reconcile the prospect of executing innocent and disadvantaged people.

"Our capital system is haunted by the demon of error -- error in determining guilt, and error in determining who among the guilty deserves to die," Ryan said. ". . . I am not prepared to take the risk that we may execute an innocent person."

Public opinion polls reflect that anxiety. Support is still strong, at 70 percent, but has declined over the past decade. That support drops to 52 percent, if people are told there is an option of life without parole. Only 35 percent want an increase in the use of the death penalty.

The uneasiness is also showing up in the criminal justice system. In 2001, for the first time in nearly two decades, the number of death row inmates in the United States dropped. The number of inmates who were executed also dropped, as did the number of new offenders sentenced to death.

Neither advocates nor opponents of the death penalty can fully explain the trends, though DNA technology may play a role. DNA has proved the innocence of growing numbers of death row inmates in a more authoritative, and thus more chilling, manner. Judges and jurors with nagging doubt are not likely to ask for death.

"It's the product of prosecutors and jurors being more discriminating," says Joshua Marquis, co-chairman of the National District Attorneys Association's Capital Litigation Committee. "Justice is a work in progress."

The Illinois death row population that Ryan vacated was less than half the size of Florida's death row, and his action only deepens the geographical and political divide. Half the nation's death population is derived from four states -- Texas, California, Florida and North Carolina -- and governors there are unwilling to see any parallels between their own administration of justice and the errors that were documented in Illinois. California Gov. Gray Davis, in fact, is now planning to borrow $220-million in the midst of fiscal crisis so he can build a state-of-the-art death row prison that will increase capacity to 1,000.

The reaction to Ryan's final act of mercy demonstrates how much the death penalty still captivates political discourse in America and how much it can polarize debate. But the national backdrop in this case is a justice system where execution is becoming less relevant and attitudes more discerning. These incremental, and less spectacular, trends may be more enduring.

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