06/16/2005 05:34 pm ET | Updated May 25, 2011

The Death Penalty Should Die

Now that the Runaway Bride and Michael Jackson are both home, perhaps many media will be freer to focus on more consequential issues—like this week’s Supreme Court decision overturning the 20 year-old conviction of a Texas death row inmate and whether we in New York should reinstate the death penalty, a debate that quietly continues in most state capitals.

The raw power of the death penalty debate first dawned on me some 25 years ago in a New Jersey TV studio before a live audience. I had always been opposed to capital punishment on moral and practical grounds, so when an opposing panelist said that retribution was a legitimate reason to execute a convicted murderer, I asked, “If someone tortured a victim, should the state then comparably torture the defendant?” The audience burst into applause and cheers of approval.

Whatever the popularity of capital punishment, without the execution of a single person in our state this past decade, the crime rate is down, the murder rate is down and post-conviction exonerations are up. Consequently, it’s past time for New York to join nearly all civilized nations and declare capital punishment to be inherently unfair, unappealable and unnecessary.

Driving the national debate now is forensic science, as any viewer of CSI knows and as any newspaper reader knows. For some 120 people convicted of capital offenses have had wrongful convictions overturned due to post-conviction DNA testing of evidence. That number of innocent is likely far higher since 75% of death row cases going to The Innocence Project (a leader in post-conviction DNA testing) cannot be adequately reviewed due to lost or destroyed evidence or no DNA evidence whatsoever. Concludes the Project’s Barry Scheck, “There’s no doubt that there are many innocent people languishing on death row today.”

Is Scheck exaggerating? Columbia Professor James Liebman’s study found that two-thirds of 4,600 death penalty cases in a recent 20 year period were so flawed as to call into question the reliability of the outcome. And four-fifths of these defendants who were given retrials were either ultimately given lesser sentences or, in 7% of the cases, found not guilty of any murder crime at all. A common problem, according to the recent When the State Kills by Austin Sarat, is the lack of competent counsel in many capital cases.

Examples of incompetent and inexperienced counsel in capital cases abound, which helps to explain why so many convicted defendants in capital cases are later exonerated. This is disgraceful but not surprising. If on the one hand you have an army of motivated prosecutors out to get a conviction in a publicized murder case versus an inexperienced lone public defender juggling 70 cases, are we surprised when this thin reed is blown down by a big wind…and that innocent people are executed in the United States?

For a fuller explanation, consider this description from Bill Kurtis’s recent The Death Penalty on Trial:

The Center on Wrongful Convictions at Northwestern University School of Law…is a leader among a loose network of lawyers who donate their time and talents to correcting death penalty mistakes. These lawyers recognize that there are inevitably too many errors within the justice system to use it as a basis for taking a human life. Theirs is a battle against judges who don’t want their judgments questioned: against prosecutors and defense lawyers who made mistakes; against shoddy investigators; and against a criminal justice system that tends to hide from criticism.

If you think about it, isn’t it illogical that today’s conservatives don’t trust the government to regulate anything properly but entrust that same government to regulate the death penalty perfectly? And shouldn’t it worry law enforcement officials that, since there’s no opportunity to appeal a wrongful execution, they risk the reality of real murderers still roaming the streets to kill again?

Rates of error likely track race: 83% of those executed nationwide between 1977-1995 were convicted of killing a white person, even though 50% of murder victims were white; during that same period, only three whites were executed for murdering black victims. In Georgia, defendants convicted of murdering white victims are 4.3 times more likely to receive the death penalty than if the victim in black—and in Florida, that ratio is 8:1.

Advocates of the death penalty of course argue that capital punishment deters capital crimes. Said Lord Halifax three centuries ago, “Men are not hanged for stealing horses but that horses not be stolen.” But a New York Times study in 2001 showed that homicide rates in states with the death penalty have been 56%-100% higher than in states without it. According to FBI data, the homicide rate in South Dakota (where the death penalty is administered) is higher than the rate in North Dakota (where it is not.)

As questions about wrongful executions, racial fairness, and deterrence grow, popular enthusiasm for capital punishment steadily falls. New opinion polls show pro-execution sentiment at its lowest point in twenty years, down to 60% of Americans from 75% just six years ago. And asked whether they prefer the death penalty to life in prison without parole for convicted murders, Americans are now evenly split. So now it shouldn’t take courage for candidates and officials—only an intelligent reading of the evidence—to oppose capital punishment.

Four years ago Illinois’s Republican governor George Ryan imposed the nation’s first statewide moratorium on executions after new evidence exonerated 13 Illinois death row inmates. In March of this year, the Supreme Court—notwithstanding that seven of nine justices were appointed by Republican presidents—banned the execution of juvenile murders. Last October, Congress enacted the Innocence Protection Act—lauded by both Justice Sandra Day O’Connor and even President Bush—providing funds to improve the quality of defense teams in state capital cases.

As public enthusiasm for the death penalty wanes, so too do the numbers of death sentences and actual executions. In 2001, 214 death sentences were issued—the lowest number since 1980—down from 303 in 1998. And the number of executions followed a similar downward slope: there were 60 executions in 2001 compared with 98 in 1999.

Still, today the U.S. stands #4 in the world in executions performed, behind China, Iraq, and Saudi Arabia—not sterling human rights company. While at least 108 nations (including Russia) have abolished the death penalty, the U.S. remains the only major Western democracy not to have followed suit.

U.S. public opinion of the death penalty now nearly mirrors that of its abolitionist European allies. The populaces of France and Italy, for example, are split 50-50, while around two-thirds of Britain and 60% of Central Europe support the death penalty. Yet none of these countries allow it.

Nor should we. If the Supreme Court could strike down a Florida recount in Gore v. Bush because it violated equal protection for different counties to have different standards for vote-counting, why isn’t it a violation of equal protection for 62 counties in New York to have in effect 62 different standards for execution?

Fine-tuning death penalty statutes will no longer suffice. Or as Justice Harry Blackmun put it, explaining why he would now reverse all death sentences that came before the High Court, he could “no longer tinker with the machinery of death.” The death penalty should die.