Pubdate: Tue, 22 May 2001 Source: Wall Street Journal (US) Copyright: 2001 Dow Jones & Company, Inc. Contact: http://www.wsj.com/ Details: http://www.mapinc.org/media/487 Author: John Harwood, Staff Reporter Of The Wall Street Journal DESPITE THE MCVEIGH CASE, CURBS ON EXECUTIONS ARE GAINING SUPPORT WASHINGTON -- Americans last year elected an enthusiastic proponent of capital punishment to the White House. And they're applauding the resumption of federal executions next month, when mass murderer Timothy McVeigh is scheduled to die by lethal injection. Yet, paradoxically, the dawn of George W. Bush's presidency is bringing a swing in the pendulum away from executions in America. Though most Americans continue to back capital punishment, support has been dropping in recent years in tandem with declining rates of violent crime. Advances in DNA testing and scandals involving the prosecution of major offenses have underscored the fallibility of evidence in capital cases. One state, Illinois, has placed a moratorium on the death penalty. Others, including Arkansas and North Carolina, have indirectly curbed its application by beefing up standards or taxpayer funds for the representation of indigent defendants. The number of people annually sentenced to death in the U.S. has fallen in three of the last four years for which statistics are available, to 272, in 1999, since peaking at 319 in 1994 and 1995. Just last week, the Texas House voted to create the state's first standards for court-appointed lawyers. The Texas Senate had already passed similar legislation. The Supreme Court this fall is scheduled to revisit whether to bar the execution of mentally retarded inmates. In the Republican-controlled Congress, support is building for stronger protections against the execution of defendants who may be innocent. Shift in Oklahoma The pendulum swing is occurring even in Oklahoma City, where Mr. McVeigh bombed the Alfred P. Murrah Federal Building six years ago, killing 168 people. There is early evidence that Oklahoma convicts are receiving fewer death sentences in the wake of the state's decision to improve legal counsel for poor defendants and expand access to DNA testing. Recent allegations of misleading testimony by an Oklahoma police chemist who served as a frequent prosecution witness, as well as the FBI's mishandling of records in the McVeigh case, are only adding to pressure for better safeguards. "The politics of the death penalty are clearly changing ... because of the blunders of the system," says Oklahoma Gov. Frank Keating. Though he staunchly supports capital punishment, the conservative Republican says he favors establishing a higher standard of proof in capital cases, even if that makes death sentences more difficult to obtain. Just five years ago, such a change was unthinkable. But it reflects a broader reconsideration taking place across the spectrum of criminal-justice issues. Since crime rates began to soar in the 1960s, voters and politicians have responded with an increasing array of get-tough measures, from more-aggressive police practices to longer sentences to sterner jails. But now, questions about the wisdom of America's get-tough approach are coming from state officials straining to finance the prison boom, leaders of poor neighborhoods depleted by the incarceration of rising numbers of drug offenders and criminologists concerned about the long-term effect on inmates of harsher jail practices. "Maybe we have gone too far," says U.S. Rep. Ray LaHood, a member of the GOP leadership on Capitol Hill, whose downstate Illinois district includes a federal prison. He is co-sponsoring the Innocence Protection Act, which would encourage states to provide capital defendants with "competent counsel" and death-row convicts with access to DNA testing. Mr. LaHood says federal judges -- both Republicans and Democrats -- are urging him to ease stiff "mandatory-minumum" drug-sentencing laws and the 1987 U.S. sentencing guidelines that took away most discretion from judges. One of those judges, Michael Mihm of Peoria, Ill., a Ronald Reagan appointee, says that with experience on the bench, he has concluded that some mandatory minimums are excessive. At sentencing time, "I am saying, 'All right ... could we accomplish all of the legitimate concerns of the society with 10 years rather than 20, with 10 years rather than 30?' " "We're filling up our prisons," Mr. LaHood adds. More than 1.9 million people reside in the nation's prisons and jails. "When people think about the number of prisons," the congressman says, "they really wonder if this is what we should be doing." Looking at Minimums President Bush himself has raised similar questions about prison policy. "Long minimum sentences may not be the best way to occupy jail space and/or heal people from their disease," he told a CNN interviewer just before taking office in January. "And I'm willing to look at that." The administration is expected to propose sentencing changes later this year. On capital punishment, the shift has occurred in spite of Mr. Bush, not because of him. In Texas, he presided over 152 executions, more than any other U.S. governor in the last quarter-century. He said earlier this month that the one-month delay in Mr. McVeigh's execution is "an example of the system being fair," as he has long maintained. But that hasn't stopped the development of an unusual community of interest across the political spectrum as debate has shifted from whether capital punishment should exist to how it is applied in practice. Opponents want stronger safeguards because it will mean fewer executions. Supporters will tolerate fewer executions as a means of stemming the erosion of public confidence in the death penalty. The result is an emerging consensus resembling a goal former President Bill Clinton once articulated concerning abortion, which he said should be "safe, legal and rare." It isn't the first time that post-World War II America has reconsidered capital punishment. Before public attention focused on the rising crime rates of the 1960s, and amid that decade's optimism about liberal social goals, support for capital punishment dropped below 50%, notes Pew Center public-opinion analyst Andrew Kohut. The Supreme Court halted executions across the country in 1972, declaring the death penalty's application arbitrary and capricious. But that was followed by years of steadily increasing support for capital punishment, as crime levels rose. In the 1970s, state legislatures scrambled to pass new death-penalty statutes designed to meet the Supreme Court's constitutional objections. Today, capital punishment is legal in 38 states. In 1977, Utah became the first state to resume executions after the high-court ruling, and 30 others have followed suit. In the late 1980s, moderate Democratic strategists said fielding a presidential nominee who supported the death penalty was crucial to the party's hopes of recapturing the White House after three consecutive Republican victories. They found such a candidate in then-Arkansas Gov. Clinton, who left the campaign trail at one point in 1992 specifically to preside over the execution of murderer Ricky Ray Rector. Public support for the death penalty crested at 80% in 1994, following another decade of rising violent-crime rates. Legislation passed that year by a Democratic-controlled Congress and signed by Mr. Clinton made some 60 additional categories of crime, such as major narcotics trafficking, subject to the federal death penalty. Two years later, an antiterrorism bill signed by Mr. Clinton placed new limitations on federal appeals by death-row inmates, while the new GOP majority in Congress cut federal funding that aided defense lawyers in capital cases in many states. Themes of the 1990s But the tide of opinion turned under the influence of two of the most powerful themes running through American society in the late 1990s. One was improving social trends, including a steady drop in rates of murder, rape and assault. Fear of violent crime likewise fell. The other was technological advancement, which in the forensic field led to DNA evidence being used to exonerate some long-serving inmates, including some on death row. In 1996, two death-row prisoners in Illinois were freed after an investigation by journalism students at Northwestern University led to DNA testing that exonerated the inmates. A year later, the American Bar Association called for a national moratorium on the imposition of the death penalty. Increasing opposition to capital punishment among religious leaders helped fuel the shift in opinion. Catholic bishops have called for the abolition of capital punishment as part of the "ethic of life" that leads to their opposition to abortion. In early 1999, then-Missouri Gov. Mel Carnahan commuted the death sentence of one inmate after receiving a personal plea from the Pope. Last year, televangelist Pat Robertson, a former Republican presidential candidate, called for a moratorium on capital punishment, after earlier unsuccessfully lobbying Mr. Bush to spare the life of convicted Texas murderer Karla Faye Tucker. Messages in popular culture, including films such as "The Green Mile" and "Dead Man Walking," also helped soften attitudes by depicting the humanity of prisoners facing execution. Sixteen months ago, opponents of capital punishment claimed a striking breakthrough when Republican Gov. George Ryan of Illinois imposed a death-penalty moratorium in the state amid mounting evidence of botched cases. In Congress, legislation that would create financial incentives for states to expand access to DNA testing and set standards for legal representation of defendants in capital cases is gathering support in both parties. In the Senate, its 19 co-sponsors include four Republicans and last year's Democratic vice presidential candidate, Joseph Lieberman, who declined to back the bill a year earlier. Its 191 co-sponsors in the House include several members of the GOP's conservative wing. GOP Rep. Mark Souder of Indiana, one of the co-sponsors, says, "I support the death penalty, [but] I'm a little uncomfortable. We want to be more sure." There's no sign of White House support for such legislation, which if implemented could have the effect of significantly decreasing the number of death sentences handed down. But one Bush adviser says the president "would probably have to sign" a death-penalty-reform bill if it reached his desk. Moderate GOP lawmaker Sherwood Boehlert of New York says Mr. Bush should affirmatively embrace the cause to "soften" his image after his narrow presidential-election victory. Among other things, such a move could help tamp down hostility among black voters, who are far more inclined to oppose the death penalty than are whites. Though African-Americans make up just 12% of the nation's population, they represent 43% of American inmates now on death row. States aren't waiting for action from Washington. Florida this year became the 15th state to bar the execution of mentally retarded inmates, in legislation now awaiting the promised signature of Gov. Jeb Bush, the president's brother. Gov. Jim Gilmore of Virginia, whom Mr. Bush made chairman of the Republican National Committee earlier this year, signed a statute to improve access to DNA testing. In Texas, Mr. Bush's gubernatorial successor has also signed DNA legislation, while lawmakers in Austin move forward on improvements in the state's indigent-defense system. Perhaps most striking, neighboring Oklahoma, the focus of national attention because of the McVeigh execution plans, began taking similar steps four years ago. A state board controlled by Gov. Keating hired Jim Bednar to run the state agency that provides lawyers for poor defendants. Mr. Bednar had formerly sought the death penalty as a state prosecutor and presided over its imposition as a judge. In the past, if a lawyer assigned to represent an indigent defendant "had vital signs, he was determined to be competent," says Mr. Bednar. "In theory I'm not opposed to the death penalty. But it's the practice we need to look at. The system is flawed."He began to overhaul the indigent-defense agency by winning funding increases to hire better-quality lawyers. The agency is now sending the message that attorneys for poor inmates "are really going to show up and do our job," Mr. Bednar says. Because of stiffer opposition, prosecutors are becoming "more hesitant to seek the death penalty," he adds. In fiscal year 1998, as Mr. Bednar was beginning to reorganize his agency, prosecutors in the area served by his Norman office, which covers roughly the western half the state, sought death sentences in 36 cases. They obtained the punishment in four cases. Last year, prosecutors sought 26 death sentences and obtained only one. Doubts about the validity of some prosecution evidence -- sown most recently by the scandal involving alleged flaws in the work of Oklahoma City police chemist Joyce Gilchrist -- may have also made juries more reluctant to impose the death penalty in the state. Oklahoma Attorney General Drew Edmondson, whose office is reviewing the cases of all 121 death-row inmates in the state to see if additional DNA testing is called for, has declined to set an execution date for any of the 12 against whom Ms. Gilchrist had testified. Ms. Gilchrist, who was suspended by the Oklahoma City police department in March and now faces a state investigation of her work, said in an interview, "I stand by my testimony." Republican Gov. Keating says further steps are needed. He proposes a higher standard of proof -- "moral certainty" of guilt -- for capital cases, instead of the familiar absence-of-reasonable-doubt standard used in criminal trials. "The people now expect moral certainty," says Mr. Keating. "No system can survive if it's fallible."