Swaggering past the death house still works in Texas, where crowds gather outside the Huntsville death chamber to cheer on the executioner. But lately more Americans, including some Republicans, are questioning how just the practice is. Governor George Ryan of Illinois, a conservative Republican, halted all executions in his state on Jan. 31, after concluding the system was "fraught with error." Thirteen people scheduled for death in Illinois had been exonerated. Three of them were freed after a journalism class at Northwestern University proved someone else had committed the crimes. One of the three came within two days of dying. Of 12 others who were executed, one is now believed to have been innocent. That was enough for Ryan. "Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection," he said, "no one will meet that fate."
After Ryan's action, Bush said he has no such qualms. "Everybody who's been executed [in Texas] is guilty of the crime of which they've been convicted," he said, adding that all the convicts had had "full access to the courts."
But that just isn't so. Death in Texas, where there are about 450 capital cases pending, is swift. The postconviction review office was shut down five years ago, and there is no public-defender service to speak of. Judges, most of them supporters of the death penalty, tend to appoint poorly trained and poorly paid lawyers. Rarely is there money for investigators. Justice is so blind that some defense lawyers can sleep undisturbed at trial: George McFarland's lawyer dozed throughout his in 1991, yet his verdict was upheld. Bad lawyering is so notorious in Texas that the legislature, not known for coddling criminals, last year unanimously passed a bill to modestly improve counsel for indigent defendants. Bush vetoed it.
While Bush stands out for his unblinking certainty, he is not alone in his enthusiasm for the death penalty. In the midst of soaring crime rates, squishy judges and lenient parole boards, politicians tripped over themselves to embrace capital punishment after the Supreme Court reinstated it in 1976. An Old Democrat could become a New Democrat by switching positions. Hillary Clinton recently showed her anticrime credentials by coming out for it in her Senate race.
Americans still support the death penalty, but not with the ferocity they felt when it was an abstraction, or when softheaded judges were letting murderers walk on a technicality. Movies like The Hurricane and Dead Man Walking, as well as last week's episode of The West Wing, show the awful drama behind the practice.
People too have seen the guilty go free and innocent men get sent to death row. The country watched as O.J. Simpson, who many thought was the "real killer," got off with the help of expensive lawyers. Eighty-five once-doomed men who were fortunate enough to have their cases taken up have been saved from the death chamber, according to Yale's Steven Bright, who directs the Southern Center for Human Rights. That number, he says, should shake the criminal-justice system to its core.
All this may not have slowed Bush, but others are taking a second look. The Roman Catholic Church, recognizing its prior inconsistency, now defends the life of the felon along with the life of the fetus. As crime rates have fallen, legislation has been introduced in six states that would put a moratorium on further executions. Last week Senator Patrick Leahy proposed a bill that would force states to provide competent counsel along with DNA testing in capital cases.
It is curious that Bush, who seems ambivalent about so many things, would be so unflinchingly sure of himself when it comes to carrying out the death penalty. He has chosen a parole board that has been known to spend as little as 15 minutes reviewing some cases. In Texas, where speed and efficiency are highly valued, allowing a moral struggle to slow down the process might be viewed as weak. But as Bush goes about the country campaigning for the presidency, showing a little doubt in the face of life-and- death decisions would lend weight to his claim to be a compassionate conservative.