Death Penalty Reforms Gather New Momentum

One was a numbers runner from Boston who was set up by the mob. Another was a Central Valley welder whose lawyer failed to do even basic defense work. A third was a mildly retarded Chicago man who spent 17 years in prison for murder and was let go only after someone else confessed.

The three men are among nearly 100 former convicts who share a numbing notoriety: All were freed from death row and released from prison, some just hours before execution, because of questions about their guilt.

Amid a remarkable flurry of recent debate about who society executes and why, the freed convicts are Exhibit A in a controversial push by Democratic congressional leaders beginning this week to reform death penalty procedures nationwide.

Backers say the $50-million measure protects the innocent by ensuring that prisoners have access to DNA testing and adequate lawyers. Opponents attack it as a back door to “abolishing” the death penalty through procedural hoops, making it all but impossible to enforce.

What all agree is that the Democrats’ stunning takeover of the Senate earlier this month now means a much higher profile and a legitimate shot at success for the proposal, which Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) has made one of his priorities.

And that has death penalty supporters worried.

“The death penalty is certainly under attack. It’s under a well-funded and virulent attack, and much of it unfortunately is based on misinformation,” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation in Sacramento, a conservative group that supports capital punishment.

No one on either side of the debate thinks the United States will return any time soon to the climate of the mid-1970s, when the U.S. Supreme Court banned execution as cruel and unusual punishment.

But even death penalty advocates such as Scheidegger detect a “softening” in recent attitudes, with debate often centering less on the morality of capital punishment than on how it is applied.

“I think the growing national consensus on the death penalty is that if we’re going to have the death penalty, it has to be fair,” said Stephen Bright, a prominent death penalty opponent in Atlanta who will testify Wednesday at a Senate hearing that kicks off what promises to be vigorous debate on Leahy’s proposed Innocence Protection Act.

Recent polls show that, while a majority of Americans still favor the death penalty, the numbers are shrinking. California saw a particularly sharp drop, with support declining from 78% in 1990 to 58% last year, according to a Los Angeles Times Poll.

The pace of executions also appears to be slowing. There have been 37 executions in the nation so far this year, down from 85 for all of 2000 and 98 in 1999, according to the Death Penalty Information Center, which opposes capital punishment.

The steady stream of death row inmates declared innocent, including a Florida man acquitted less than three weeks ago of murdering a Tampa couple, has alarmed many people. Illinois has exonerated so many inmates facing execution--13 in 13 years--that Gov. George Ryan declared a death penalty moratorium last year.

With about 3,700 prisoners nationwide sentenced to death, officials in some parts of the country have rejected calls for moratoriums. But a series of recent developments has revitalized the debate, testing the resolve of death penalty backers and emboldening critics.

Consider the events of just the last three weeks.

* In Indiana, the federal government carried out its first two executions in 38 years amid intense controversy. Oklahoma City bomber Timothy J. McVeigh’s execution was postponed for a month after the government admitted it failed to give the defense 4,000 pages of documents. Lawyers for Juan Raul Garza, a drug kingpin convicted in three murders, argued that the deck was stacked against him as a Latino in Texas trying to avoid a death sentence.

* In Washington, D.C., Atty. Gen. John Ashcroft declared just days before Garza’s execution that there was no ethnic or geographic bias against federal death row inmates. Criminal trends, not discrimination, explain why about 80% of the federal inmates facing death are minorities, he said. Ashcroft’s findings enraged critics, who attacked his data as suspect and incomplete.

* In Florida, Gov. Jeb Bush signed a bill preventing the execution of mentally retarded convicts, a move in step with recent decisions in other states. In Texas, the Legislature did the same in an effort to soften the state’s notoriety for executing people, but Gov. Rick Perry vetoed the measure.

* In Alabama, the electrocution of a man with an IQ of 69, convicted in the killings of his ex-wife and two others, was blocked by the U.S. Supreme Court after his attorneys argued that mentally retarded convicts should not be put to death. (Mental retardation is usually defined as having an IQ below 70.) The high court is expected to consider that question in another case involving a North Carolina defendant.

* In Europe, where most nations ban the death penalty, President Bush told reporters that “we should never execute someone who is retarded,” a seeming shift from his position as governor of Texas that sent White House aides scrambling to clarify his remarks.

* And in France, opposition to capital punishment forced the United States to forgo the death penalty against James Charles Kopp, accused of killing an upstate New York abortion provider, before the French would agree to extradite him following his March arrest.

“What I think we’re seeing,” said Elisabeth Semel, director of the American Bar Assn.’s Death Penalty Representation Project, “is that this country is undergoing a reexamination of the death penalty.

“We haven’t reached the point where we can say the death penalty has been rejected, but the doubts and the discomfort and the dissatisfaction are becoming very pronounced,” she said.

So pronounced that many death penalty supporters believe that the debate has tilted too far toward protecting the rights of the accused and away from protecting the rights of the victims.

In the view of some law enforcement groups and supporters of the death penalty, Leahy’s proposed Innocence Protection Act risks pandering to the guilty.

The bill seeks to ensure convicted offenders access to DNA testing and to prevent the premature destruction of biological evidence.

It also would provide $50 million for a national commission to establish standards for ensuring that death row inmates have competent lawyers to defend them. States that do not meet the standards could lose substantial federal funds for prisons and other projects.

Bright, director of the Southern Center for Human Rights, said incompetent defense attorneys extend well beyond a few lawyers in Texas who were caught napping during capital punishment trials.

“The quality of legal defense in this country is just horrible,” he said. “People are being processed through the courts like an assembly line. It’s just not justice.”

While all agree that the goals of the legislation are noble, opponents counter that the vast majority of inmates are ably defended. Joshua K. Marquis, a prosecutor in Oregon who is a board member of the National District Attorneys Assn., said the ill-advised reforms contained in the legislation could wreak havoc on the criminal justice system.

DNA isn’t a “magic bullet” that can instantly determine the true culprit in any crime, Marquis said. He maintained that the Leahy bill allows so much “wiggle room” in determining who gets DNA testing that it invites abuse by criminals who have no legitimate prospects of getting out of prison.

“As drafted, I’m concerned that this would basically be a functional abolition of the death penalty, and it would create an enormous logjam” of forensics tests, he said. “There’s a great deal here that would make the death penalty virtually impossible to enforce.”

Marquis testified against an earlier incarnation of Leahy’s bill last year, when a competing plan from Sen. Orrin G. Hatch (R-Utah), with much less expansive DNA requirements, helped kill Leahy’s proposal.

But a lot has changed since then.

Eleven more death row inmates have been freed since January 2000. And with the Democrats’ takeover of the Senate, Leahy has replaced Hatch as the influential chairman of the Judiciary Committee.

Passage of Leahy’s measure is considered far from a done deal. Although it has more than 200 co-sponsors from both parties in the House and Senate, it faces a potential threat from a fellow Democrat: Sen. Dianne Feinstein of California.

Feinstein has offered a compromise that would limit those defendants eligible for DNA testing. Her version also would use financial inducements, rather than penalties, to encourage states to meet national standards for defense attorneys.

Whichever version wins out, “Leahy deserves credit for making this a huge issue,” said a senior aide to another Democrat.

“This is an issue that people didn’t even want to touch a few years ago. I mean, competent counsel for defendants? That’s considered being weak on crime,” the official said. “Leahy has already moved this issue a lot further along than anyone really thought it could go.”