2000 — the year in review:
Fatal flaws in the machinery of death?
Recent polls continue to find that Americans support the death penalty by a substantial margin, yet the beliefs of even capital punishment’s staunchest advocates seemed shaken in 2000, with prosecutors and others calling for DNA testing of death-row inmates and studies finding significant judicial errors and disparities in an alarming percentage of cases.
The year began with a moratorium on the death penalty in Illinois, where Republican Gov. George Ryan halted all executions on Jan. 31 and appointed a 12-member panel to both study the issue and give the public the opportunity to address flaws in the state’s system. Since 1987, 13 inmates in Illinois have been taken off death row or freed.
“Until I can be sure that everyone sentenced to death in Illinois is truly guilty — until I can be sure with moral certainty that no innocent man or woman is facing lethal injection — no one will meet that fate,” said Ryan.
Executions, in fact, were down overall last year. Eighty-four prisoners were put to death in 2000, compared with 98 the previous year — a 14 percent decline. Death sentences were imposed on 272 people in 1999, down from an average of 300 annually over the previous five years, according to a Department of Justice report released in December.
“I think what we are starting to see is a new hesitancy and skepticism on the part of jurors in giving out the death penalty, and a new more cautious rhetoric by politicians,” said Richard Dieter, executive director of the Death Penalty Information Center.
Another apparent indication of a growing discomfort with the death penalty was the drop in support it has suffered since 1984, when 80 percent of Americans said they favored it. A Gallup poll in February of this years found that figure now to be at 66 percent.
In Ohio, attorney general Betty D. Montgomery initiated a pilot program in December which offered the state’s 201 death row inmates a chance to prove their innocence through free DNA tests. Under the Capital Justice Initiative, crime scene evidence that has been credibly protected over the years will be provided by officials. Before agreeing to the test, however, the state requires that a favorable outcome must “by itself” produce exoneration.
“If she [Montgomery] means it, then I applaud this minor wobbly step in the right direction,” Greg W. Meyers, the chief counsel for the death penalty division of the Ohio Public Defender’s Office, told The New York Times. “But the real deal would first and foremost include legislation ordering the state’s 1,000-plus law enforcement agencies to begin protecting and preserving physical evidence.”
Among a number of troubling studies released last year, a sweeping examination of the death penalty conducted by a Columbia University law professor found that two-thirds of the appeals of capital punishment cases from 1973 through 1995 were successful. Of 4,578 cases in which at least one round of appeals was completed, state or federal courts threw out the conviction 68 percent of the time. In those cases that were retried, four out of five defendants were not resentenced to death.
“It’s not one case, it’s thousands of cases,” said Prof. James Liebman, the lead author. “You’re creating a very high risk that some errors are going to get through the process.”
Some death-penalty proponents, however, pointed to the findings as proof that the system works. Said University of Utah law professor Paul Cassell: “You will find more reversals of capital sentences than other sentences [because they are reviewed so closely]. In some ways, this confirms that the system is working as it should.”
Another study, released in September, suggested that disparities exist between state and federal guidelines for seeking the death penalty. Federal death-penalty policy is governed by geography and judgment calls by local prosecutors, rather than a uniform guideline to determine which cases qualify for capital punishment, according to Rory Little, a law professor at the University of California’s Hastings College of the Law in San Francisco.
Examining 572 death-penalty cases from October 1989 through February 2000, Little found the federal government sought capital punishment in 199 cases, or 35 percent. Only 20 of those resulted in a defendant being sentenced to death. The largest number, 62, were resolved through plea bargains.
Little also found that just 11 cases were approved for capital punishment in 12 states which do not use the death penalty for state crimes. By contrast, Texas, Florida and Virginia, accounted for 35 of the 67 death-penalty authorizations given to the dozen states which lead the nation in executions.
A statistical survey by the Justice Department released in September showed that since 1995, when a formal review was put in place, 80 percent of the 682 defendants who faced capital charges have been members of minority groups. United States attorneys, the survey said, recommended the death penalty for 183 defendants, 78 percent of whom were minorities.
The study also found that blacks were more likely than whites to face the death penalty for interracial murders. Since 1955, of the 177 defendants who faced execution for the death of a person of another race, 55 percent were black, 25 percent Hispanic and 11 percent white.