Death penalty's problem: What if 'killer' is innocent?


January 27, 1993|By ROGER SIMON

Though American prisons are crowded past the bursting point, they are not crowded with death-row murderers.

According to my calculations, prisoners awaiting execution make up just more than a fifth of 1 percent of America's prison population.

There are currently 2,595 men and 41 women on death rows. But American prisons and jails house nearly 1.25 million prisoners.

That is the largest prison population per capita in the world.

And one reason it continues to grow is that more and more states have instituted mandatory sentences and much harsher penalties for drug crimes.

But when you get right down to it, convicted murderers are not much of a strain on the system.

To put it another way, if you killed everyone on death row tomorrow, it would not significantly help prison overcrowding or save much in prison budgets.

But convicted murders do burden the system in one respect: They are always trying to stay alive. And they get lawyers to file appeals, which can stretch on for years.

In late December, 1981, William H. Rehnquist wrote a strong dissenting opinion in which he accused his colleagues of coddling murderers marked for death and for allowing the death penalty to be "virtually an illusion."

This lead to a retort from Justice Thurgood Marshall, who was a lifelong opponent of the death penalty.

In this instance, the court was trying to decide whether it was constitutional to execute a young man who at age 16 killed an Oklahoma highway patrolman.

Rehnquist, who had been appointed to the court by Richard Nixon in 1972 and was later elevated to Chief Justice by Ronald Reagan in 1986, was tired of having to feed, clothe and house such prisoners.

"Why should the taxpayers have to bear the cost" of keeping the man in prison for the next 15 to 30 years while he exercised the "arcane niceties" of the law? Rehnquist asked.

To which Marshall sarcastically replied: "It would have been cheaper just to shoot him right after he was arrested, wouldn't it?"

Rehnquist made no reply. But time and the shifting political nature of the court was on his side.

From 1976, when the court reinstituted the death penalty in America, through 1983, executions per year either were zero or in single digits and never reached more than five in any one year.

But then things really took off: There were 21 executions in 1984, 18 in 1985, 18 in 1986, 25 in 1987, 11 in 1988, 16 in 1989, 23 in 1990, 14 in 1991 and a record-setting 31 last year.

Rehnquist had, in effect, won. In a series of decisions over the years, the court made it much easier to execute people.

And this week, in a 6-3 decision, the court made it easier still.

It ruled that a death-row inmate can be executed without a hearing to determine whether new evidence would exonerate him.

The majority said that in such cases the condemned person can always ask for executive clemency from his governor.

But governors are elected politicians and given the current mood of the times they do not exactly look for opportunities to save people from execution. (Quite the opposite, in fact. Some political analysts think Bill Clinton's championing of the death penalty was an essential factor in his presidential victory.)

Though 31 people were executed last year, only two people were granted executive clemency.

The dissent by Justice Harry A. Blackmun in this week's case was a sharp one: "The execution of a person who can show that he is innocent comes perilously close to simple murder."

And: "Nothing could be more contrary to contemporary standards of decency . . . or more shocking to the conscience . . . than to execute a person who is actually innocent."

Blackmun's dissent goes to the heart of what is wrong with the death penalty: There is no undoing it.

History is full of cases of innocent people being wrongfully convicted and later set free.

But in the case of the death penalty, there is no possibility of making a correction. Wrong though the execution may prove to be, it lasts forever.

So you have to wonder: What's the hurry?

FRIDAY: Convicted but innocent.

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