Stay of executions

ANDREW COHEN is CBS News' chief legal analyst.

LURKING LARGELY beneath the radar the last few weeks, while media coverage has focused on the perjury and obstruction-of-justice trial of I. Lewis “Scooter” Libby and the Bush administration’s flip-flop on domestic surveillance, were a series of important legal and political developments in the increasingly muddled world of capital punishment in the United States.

Nearly 13 years after U.S. Supreme Court Justice Harry Blackmun famously promised that he would no “longer tinker with the machinery of death,” judges and politicians are tinkering — and doing so in ever emboldened ways. From Jan. 19 through Jan. 26, reports the Death Penalty Information Center, eight executions were stayed in North Carolina, Ohio and Texas — with four more postponed Thursday in Tennessee.

In North Carolina, a state judge blocked three executions after death row inmates challenged the state’s lethal injection procedures. In Ohio, three more executions were stayed pending more thorough clemency reviews. Two Texas capital cases were halted, one by a state judge and one by the U.S. Supreme Court.


And in California, a federal trial judge in December declared unconstitutional the state’s method of lethal injection. Even the conservative U.S. Supreme Court, which in large measure has the final say on whether and to what extent capital punishment may be used, has begun to pay more attention to death penalty procedures. The justices in January heard three capital cases out of Texas and agreed to hear another out of Washington state before the end of the term.

But it’s not just the judiciary that gummed up the machinery of death last month. In Maryland, legislators proposed a measure that would ban capital punishment in the state, a bill Gov. Martin O’Malley said he would sign into law. In the Ohio cases, Gov. Ted Strickland, new to his post, declared that he has “serious questions” about capital punishment, and a former corrections director who oversaw executions in the Buckeye State said he favors the end of capital punishment. In New Jersey, a state commission recommended the abolition of the death penalty in that state too. And it was Tennessee Gov. Phil Bredesen on Thursday who declared a 90-day moratorium on executions, halting the four in that state.

None of this means the end of capital punishment is near. A majority of Americans still support capital punishment in one form or another (and there are still states, mostly in the South and the West, where juries are still handing down death sentences for murder). But there is a clear, marked trend toward limiting the circumstances in which capital punishment is applied and the manner in which executions are performed. As the Death Penalty Information Center notes, “The number of death sentences per year has dropped dramatically since 1999.”

In some cases, the architects of this national change are loyal to capital punishment and only want to protect it from substantive challenge by firming up the fairness in its procedures (which, trust me, needing firming up). These folks argue — and with good reason if Supreme Court precedent is any guide — that if more isn’t done to ensure that death sentences are fairly meted out, they will one day be halted. In other cases, it is the opponents of capital punishment who have been able to muster support for their cause by using compelling statistics that show the failure of the death penalty as a deterrent.

In part, the refined attitudes about the death penalty also have come about because of advances in technology. New DNA testing and, just as important, a newfound willingness by judges and prosecutors to revisit old capital cases have led to many well-publicized exonerations of death row inmates, each one cutting into the core of confidence that people have about the reliability and accuracy of capital punishment. Since 1973, reports the Death Penalty Information Center, at least 120 people on death row have been exonerated for one reason or another.

Where is capital punishment likely to be at the end of this mini-upheaval? I have no idea. But I am willing to offer an educated guess: The death penalty will exist in fewer states than it does now. And in those states where it still exists, capital procedures, from jury selection through lethal injection, will be subject to a much more rigorous judicial review. Politicians may be more willing to ensure that capital defendants get decent representation at trial, and when they do not, judges may be more willing to toss tainted convictions. And DNA, the latest “great equalizer,” will loom in the background of every capital case that does not otherwise involve irrefutable evidence.

After a generation of often reckless expansion of the death penalty, the pendulum is starting to swing back. The change didn’t start in January 2007. But it sure looks like it is picking up the pace.