Bush Hits The Pause Button

By granting a reprieve to a convicted murderer, Bush highlights the first part of compassionate conservative. Will voters be impressed?

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Illinois Governor George Ryan, a Republican, triggered the first major shift in death-penalty politics last January, when he declared a moratorium on executions in his state after no fewer than 13 death-row inmates were freed when new evidence cast doubt on their guilt. Then came Pat Robertson, the religious broadcaster, who called for a national moratorium. Next Wednesday, Democrat Patrick Leahy of Vermont and Republican Gordon Smith of Oregon will introduce a major bill in the Senate that would compel states to use DNA testing in all relevant cases. Also next week a highly touted study led by a Columbia law professor will report an "appalling rate" of error in the capital justice system and make a claim to documenting it state by state.

This sense of unease about a mistake-prone system is also beginning to surface among voters. Although a majority still support capital punishment, the number is down to 66%, from a high of 80% in 1994. But fully 92% support making DNA testing available to those convicted before its widespread use. At the moment, only two states, New York and Illinois, insist on giving inmates on death row access to the new technology. Why the shift? Part of it may be the legacy of the country's lower crime rate--even though murder stats have registered a slight uptick in a few major cities (see box). The flurry of sentences overturned on the basis of DNA evidence is also driving public opinion. Such genetic fingerprints have led to the freeing of 72 inmates, including eight convicted of capital crimes. Other factors include racial and economic disparities in sentencing. In Texas, for instance, two-thirds of those sentenced to die are black or Hispanic, though they make up only one-third of the state population. Then there's bad lawyering: this week attorneys for a Texas death-row inmate, Calvin Burdine, will argue in federal appeals court that he was deprived of due process when his first lawyer slept through much of his trial.

These kinds of judicial atrocities have led to some remarkable conversions. Former Virginia attorney general William Broaddus, a Republican, used to prosecute capital cases. "It was part of our heritage and culture in Virginia," he says. Now he opposes them, after spending time with a death-row inmate he represented in 1996: "When you shake someone's hand, you start thinking." John DiIulio, the conservative crime scholar, has also changed his mind. His beef is that death row is a crapshoot because there is no logical relationship between those who commit capital crimes and those who end up facing death. Of the roughly 600,000 homicides committed in the U.S. since 1976, only 639 convicts have been executed. "It's become a lottery as to who gets killed," he says. "Do the math."

American support for the death penalty has varied. There were 1,289 executions in the 1940s and 715 in the 1950s, and the number fell to 191 by 1976. In 1966 support for capital punishment reached an all-time low, 42%. And the Supreme Court began a series of decisions limiting the scope of the death penalty, effectively outlawing it in 1972. When the court reinstated the penalty in 1976, it mandated that certain procedures, such as separate deliberations for determining guilt and sentencing, were to be followed.

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