In this, the only country in the civilized world where criminals may conceivably die for their crimes, admission to the exclusive ranks of death row is far more likely to lead to distinction than extinction. While a lifer's case will likely sink into obscurity, those facing death have more promising futures.
Right off, a whopping 40 percent of direct appeals from capital convictions result in reversals. By the time a death-sentenced convict veers close to execution -- a process that typically takes more than 10 years -- better than half the company will have dropped out after scrupulous courts spurred by dedicated lawyers (who wouldn't look at a lesser challenge) have discovered reversible errors.
Their cases sent back to the trial courts, four out of five death-row inhabitants will get life or less. Seven percent of those retried -- many more than once -- end up with outright acquittals. Still politically incorrect, executive clemency remains a remote possibility when all else fails.
In 2001, George Ryan, the Republican governor of Illinois, took a look at his state's statistics. He was struck by the fact that of 270 people sentenced to death between 1977 and 1999, 12 had been executed, while 13 were totally exonerated. He imposed a moratorium pending the report of a commission.
Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (Farrar, Straus & Giroux, 161 pages, $17) is about Scott Turow's experience serving on Ryan's commission. Turow, who had seen success as prosecutor, criminal defense lawyer and crime novelist, labels himself "a death penalty agnostic."
But Turow reluctantly joined the slim majority recommending that the death penalty be abolished "because of a conclusion that no system can or will be constructed that sufficiently guarantees that the death penalty will be applied without arbitrariness or error." Accompanied by jeers and cheers as he left office this January, Governor Ryan emptied Illinois' death row, commuting the sentences of 156 people and pardoning four others.
Of all the arguments for abolition, the irrevocability of executing an innocent is the most compelling. When it comes to eliminating the wrong person under the right circumstances, DNA comparisons can produce absolutely conclusive evidence of innocence.
Barry Scheck brilliantly blasted a bloody load of DNA evidence pointing to the guilt of O.J. Simpson with his colleague, Peter Neufeld. The two lawyers founded the Innocence Project, primarily devoted to providing convicts an opportunity to undertake the DNA testing that could seal or save their fates. We hear only about the saved, including the premium example, Maryland's appropriately christened Kirk Bloodsworth, who was recently completely exonerated when the identity of the real DNA carrier came to light.
Along with Pulitzer Prize-winning columnist Jim Dwyer, Scheck and Neufeld have produced books that far better arouse a sense of entertaining indignation than do the numerous TV shows (such as The Fugitive) featuring fictional exculpations of likable innocents. Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted (Doubleday, 320 pages, $27.50) tells the stories of 43 men freed through the efforts of the Innocence Project.
Much more of the same can be found in Actual Innocence: When Justice Goes Wrong and How to Make It Right (Signet, 432 pages, $7.50). If you like that sort of thing on your coffee table, photographer Taryn Simon has teamed up with Scheck and Neufeld to produce stunning portraits of the exculpated, each related to scenes of the crimes they didn't commit: The Innocents (Umbrage Editions, 136 pages, $34.05).
Although polls consistently report a majority of Americans favor retention, or keeping the death sentence on the books, it is virtually impossible to locate an intelligible book that supports the idea. Abolition offerings published this year alone include a collection of anti essays, Beyond Repair? America's Death Penalty, Stephen P. Garvey, editor (Duke University Press, 264 pages, $54.95); Kiss of Death: America's Love Affair With the Death Penalty by John D. Bessler (Northeastern University Press, 224 pages, $47.50); The Hangman's Knot: Lynching, Legal Execution, and America's Struggle With the Death Penalty by Eliza Steelwater (Westview Press, 304 pages, $26); The Contradictions of American Capital Punishment by Franklin E. Zimring (Oxford University Press, 272 pages, $30); and The Wrong Men: America's Epidemic of Wrongful Death Row Convictions by Stanley Cohen (Carroll & Graf, 320 pages, $14) citing the cases of 104 men and two women who got out from under death sentences.