Another look at capital punishment

Penalty: An Illinois panel's study again raises the question whether state-sanctioned killing is a fair form of punishment.

April 21, 2002|By Michael Hill | Michael Hill,SUN STAFF

THE DEATH penalty seems entrenched in American culture as a tradition that borders on myth - an out-of-the-Bible, eye-for-an-eye punishment that once brought order to the frontier and can now bring justice to traitors and terrorists as well as murderers.

But a report issued last week by an Illinois commission that spent two years studying capital punishment has re-energized the debate about its future, opening the question whether it can ever be administered fairly.

"I think the Illinois report raises critical and important questions about the future of capital punishment," says Austin Sarat, a professor at Amherst College and the author of the book When the State Kills: Capital Punishment in American Culture.

"When proponents of the death penalty ask why someone like Ted Bundy does not deserve to die, opponents have a big burden to bear," he says, referring to the killer of at least 28 women, who was executed in Florida in 1989. "They seem to be going against the cultural mainstream. But the Illinois report is signaling it may be possible to come at the death penalty from the values of middle America, the belief in fairness."

Sarat says that when race enters into the use of the death penalty, when capital defendants don't have access to adequate counsel and when innocent people are sent to death row, "then opponents of the death penalty can claim the moral center of American politics." He adds, "That's not to say the death penalty will die or end quickly in the U.S., but it is to say that we are in a period of re-evaluation."

When the Supreme Court in 1972 declared the death penalty "cruel and unusual" because of its arbitrary application, many thought that was the end of state-sanctioned killing, a punishment that was disappearing from every other Western industrialized nation. Support for the death penalty in the United States waned during the 1960s, and the number of executions declined from 1,289 in the 1940s to 715 in the 1950s, and to 191 from 1960 to 1972.

But after the court ruling, many states immediately passed statutes designed to overcome the constitutional objections, including Maryland, which approved a reworked death penalty law in 1975. In 1976, the Supreme Court approved one of the new laws, reinstating the death penalty. Since then, 769 people have been put to death.

"We have managed to exempt the execution process from the thorough and altogether healthy fear of governmental power that informs almost every other arena of American life," says Frank Zimring of the University of California, Berkeley. "I think it is linked quite organically to the vigilante tradition ... a mythology that is a large part of support for the death penalty in places where the executioner is quite active."

The penalty has disappeared from Europe. America joins countries such as Iran and China in regularly executing those whose crimes are judged the most heinous. Still, the penalty's presence in the legal system seemed appropriate after the Oklahoma City bombing and after Sept. 11, the only possible sanction for any held to be involved in those acts. But the latest terrorist attacks only interrupted a growing chorus of complaints about the death penalty that many think will cause a serious reconsideration.

Two years ago, after a series of death row inmates were found to be innocent, Illinois Gov. George Ryan, a Republican, called a moratorium on executions and appointed a commission to review the penalty. The panel reported last week, proposing an extensive series of reforms at every level of the criminal justice system that it said are needed if the death penalty is to be fairly administered.

The reforms include a serious reduction in crimes eligible for the penalty, a statewide panel to review death sentence prosecutions, videotaping all interrogations with suspects in capital cases, limiting the use of jailhouse informants and appointing highly competent defense lawyers.

"For Americans, the death penalty is an appealing statement about our values," Sarat says. "It is not about our interest in killing criminals or combating crime, it is about who we are as a culture and society. It is a way of expressing and embracing mainstream American values about individual responsibility."

But, Sarat says, just as embedded in American values is a sense of fairness, particularly in regard to a punishment with such irreversible finality. The Illinois report, he says, shows how difficult it is to be fair when administering the penalty.

Edward A. Tomlinson of the University of Maryland School of Law says that the Illinois report helps explode one myth about the death penalty - that faulty convictions are less likely in these cases than in noncapital cases. "In capital cases, the crime is usually a horrible crime, there's a lot of publicity and community pressure," he says. "The fear is that more often than in other cases, prosecutors feel they have to go ahead with a shaky case."

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