Criminal
May 11, 2000
Death Watch
Forum: By Stephen F. Rohde It used to be that proponents of capital punishment could always count on the steadfast support of conservative Republicans. Not Anymore.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
It used to be that proponents of capital punishment could always count on the steadfast support of conservative Republicans.
Not any more.
From Pat Robertson to William Buckley, from George Will to the Cato Institute, conservatives, driven by their instinctive distrust of government, have begun to seriously question the continued use of the death penalty, in some cases calling for an immediate moratorium.
Prescient observers might have seen it coming in 1997, when the American Bar Association, a mainstream professional organization made up of 300,000 lawyers, most specializing in corporate law, business transactions and civil litigation, called for a moratorium on capital punishment.
The following year, Robertson, the televangelist and former Republican presidential candidate, pleaded with Texas Gov. George W. Bush to spare the life of Karla Faye Tucker, who had become a born-again Christian while on death row. Robertson argued that Tucker was now a different person, whose execution was about vengeance, not justice. (Preserving his spotless record of never seeing a clemency petition he couldn't deny, Gov. Bush cast aside the pleas of his fellow Republican and presided over Tucker's execution.)
Then last January, the capital-punishment debate was rocked by the stunning news that Illinois Gov. George Ryan, a Republican who generally supports the death penalty, had imposed a statewide moratorium on executions, citing the "shameful record of convicting innocent people and putting them on death row."
Last month, conservative commentator George Will devoted his entire Washington Post column to exposing the risks of executing the innocent. Will described how Robert Miller had spent nine years on death row, during six of which the state had DNA test results proving his sperm was not that of the man who raped and killed the 92-year-old victim.
Will exclaimed that one could fill a book with such "hair-curling true stories of blighted lives and justice traduced," which should "change the argument about capital punishment and other aspects of the criminal justice system." According to Will, conservatives especially should draw the lesson that "capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order."
Will was obviously impressed by what Barry Scheck, Peter Neufeld and Jim Dwyer demonstrated in their new book "Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted" (1999). Will called it "a catalog of appalling miscarriages of justice, some of them nearly lethal," whose "cumulative weight compels the conclusion that many innocent people are in prison, and some innocent people have been executed."
Will believes the book is "a heartbreaking and infuriating compendium of stories of lives ruined" by forensic fraud, mistaken identifications by eyewitnesses or victims, criminal investigations that become "echo chambers" in which the perceptions of prosecutors and jurors are shaped by "what they want to be true" and the "sinister culture of jailhouse snitches," who earn reduced sentences by fabricating "admissions" by fellow inmates to unsolved crimes.
In the 24 years since the resumption of executions under U.S. Supreme Court guidelines, Will pointed out that about 620 have occurred; but 87 condemned persons - one for every seven executed - have had their convictions vacated by exonerating evidence. He concluded that the "inescapable inference from these numbers is that some of the 620 persons executed were innocent."
Within days of Will's remarkable column, Robertson endorsed a moratorium on the death penalty, which he said is not always applied fairly. Appearing at a symposium at the College of William and Mary's law school on "Religion's Role in the Administration of the Death Penalty," Robertson pointed out that the death penalty has been administered in a way that discriminates against minorities and poor people who cannot afford high-priced defense attorneys.
"I think a moratorium would indeed be very appropriate," said Robertson, founder of the Christian Broadcasting Network and the Christian Coalition. He said a moratorium could be a "good solution" to a flawed justice system and a misguided society that supports - to borrow a phrase from the Pope - a "culture of death." Robertson said the current capital-punishment system fails to give most governors the power to grant clemency to death-row inmates who have made sincere religious conversions.
Most recently, William F. Buckley Jr., conservative icon and publisher of the National Review, noted that in the ongoing debate over capital punishment, "the abolitionists have enlisted the subscription of George Will, an enormously important development in a quarrel that tends to separate liberals and conservatives."
For Buckley, given Will's observations, "the profoundest question is left with us: If many innocent people are being convicted, that is the central concern - not merely that some of them are executed, but that some of them should not have spent any time at all in jail."
Buckley went so far as to argue that "it is scandalous, humiliating and heartrending that in Los Angeles, as we now learn, one can't know who was guilty of anything. So what do we propose to do about that, never mind the graduation of penalties, which range from overnight in jail to the gas chamber?"
Recently, the Republican-controlled New Hampshire House passed a bill to abolish the death penalty; and the nonpartisan, but decidedly conservative, Nebraska legislature approved a moratorium on executions.
And perhaps the most important conservatives in the whole country - members of the U.S. Supreme Court - are beginning to examine the death penalty more carefully. In April, Justices Sandra Day O'Connor and Anthony Kennedy provided the necessary swing votes to reverse death sentences in two separate cases.
"The political climate is shifting," Tim Lynch, director of the Project on Criminal Justice for the Cato Institute, a conservative-libertarian research and advocacy organization, told the New York Times. "I think a lot of conservatives may not go as far as liberals and say it should be abolished. But what happened in Illinois is getting people to rethink whether sufficient safeguards are in place."
According to Lynch, "When you consider the foul-ups and mix-ups and incompetence that you often find in government work, it gets scary. You realize that the institution that puts people to death is the same institution that delivers the mail to the wrong people."
Conservatives see a consistency, not an inconsistency, for people who believe in the sanctity of life to make sure that the innocent are never put to death with state sanction, whether they are unborn or in jail.
With homicide tumbling to its lowest rate since 1967, Americans are less fearful and consequently less committed to capital punishment. In a recent Gallup Poll, 66 percent said they favored the death penalty, representing the lowest level of support for executions in 19 years. Hence, conservatives now have more political room to vent their doubts about the death penalty.
Republican Rep. Ray LaHood of Illinois and Oregon Republican Sen. Gordon Smith are co-sponsoring the Innocence Protection Act in the House and Senate, respectively. The bill would ensure that defendants in capital cases get adequate legal counsel, including access to DNA testing. Rep. LaHood argues that "we absolutely have to be 100 percent sure when someone receives the death penalty."
David Protess, the Northwestern University professor whose journalism students have unearthed new evidence that saved five innocent men in Illinois (three from execution and two from life sentences), believes that "opposition to capital punishment is more consistent with the beliefs of conservatives, than liberals. Conservatives are rightly skeptical about any government program, especially one that deprives individuals of their most basic rights. The incarceration of more then 3,000 people on death rows nationally, and the expenditure of millions of dollars annually to house and kill them, is big government at its worst."
Protess believes that conservatives of every stripe have good reason to be appalled by capital punishment. "First, libertarians would object to the loss of individual life and liberty at the hands of the state. Second, religious fundamentalists would object to the slaughter of innocents. Third, law-and-order conservatives would object to a system that allows the actual perpetrators to roam free and commit other crimes. All conservatives would object to the terrible waste of taxpayers' dollars."
Some death-penalty abolitionists remain skeptical of the conservative skeptics. They fear that these newcomers to their movement are not genuinely interested in abolishing capital punishment once and for all, but are simply tinkering with the system to make it more efficient at executing the guilty and exonerating the innocent.
Indeed, many death-penalty opponents have cautioned their colleagues over relying exclusively on "the innocent argument." After all, says Mike Farrell, an actor, human rights activist and president of Death Penalty Focus, "we oppose all executions, not only those of the innocent."
Despite these important developments, no one is assuming that the vast majority of conservatives have become born-again abolitionists - not yet at least. But the very fact that so many prominent conservative opinion makers have publicly embraced the most powerful arguments against the death penalty strengthens the hand of abolitionists as never before.
As Nat Segaloff, an ACLU activist and Hollywood writer, puts it: "One should regard 'Conservatives Against the Death Penalty' like the old saw about Samuel Johnson's dog walking on its hind legs - the point is not whether it does it well, but that it does it at all."
Stephen Rohde is president of the ACLU of Southern California and a member of the board of Death Penalty Focus. He served on the legal team that succeeded in reversing the death sentence of an inmate on California's death row.
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