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April 01, 2007

Staying Executions: After Expanding the Death Penalty, the Pendulum Swings Back

by Andrew Cohen

Lurking beneath the radar during the first third of 2007, while media coverage of legal events focused on the perjury and obstruction of justice trial of I. Lewis “Scooter” Libby, the dispute over detainee rights at Guantanamo Bay, and the scandal involving the dismissal of federal prosecutors, were a series of important legal and political developments in the increasingly muddled world of capital punishment in the United States.

Thirteen 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. In the first quarter of 2007, reports the Death Penalty Information Center, no fewer than eighteen scheduled executions were stayed in five states. For example, in North Carolina, a state judge blocked five executions after death row inmates challenged the state’s lethal injection procedures. In Ohio, four executions were stayed for more thorough clemency rules and also concerns about the manner in which executions are con­ducted. And at least three Texas scheduled executions have been halted.

Meanwhile, in California, a federal trial judge in December declared unconstitutional the state’s method of lethal injection. In ten other states, executions are on hold generally—no dates, no stays—because of mounting concerns about the procedures by which condemned offenders are executed by 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 one term alone ruled in favor of three death row inmates, whose trials in Texas the Court’s majority deemed to impermissibly restrict the amount and nature of mitigating evidence or the appellate process in reviewing it. Those men now will get new sentencing hearings.

Moving Beyond the Courts

It is not just the judiciary that gummed up the machinery of death recently. In Maryland, legislators proposed a measure that would ban capital punishment in the state, a bill Governor Martin O’Malley said he would sign into law. The measure did not get that far, but in February O’Malley wrote a compelling op-ed in the Washington Post explaining his reasons for ending capital punishment. “And if the death penalty as applied is inherently unjust and lacks a deterrent value,” he wrote, “we are left to ask whether the value to society of partial retribution outweighs the cost of maintaining capital punishment. While I am mindful of and sensitive to the closure (and in some cases the comfort) that the death penalty brings to the unfathomable pain of families that have lost loved ones to violent crime, I believe that it does not. ”

“Human dignity,” O’Malley continued, “is the concept that leads brave individuals to sacrifice their lives for the lives of strangers. Human dignity is the universal truth that is the basis of ethics. Human dignity is the fundamental belief on which the laws of this state and this republic are founded. And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.” Martin O’Malley, Why I Oppose the Death Penalty, Wash. Post, Feb. 21, 2007, at A15.

Meanwhile, in the Ohio cases, Governor 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 Tennessee, Governor Phil Bredesen earlier this year declared a ninety-day moratorium on executions, halting the four in that state.

In Montana, the state senate voted to abolish the death penalty. In Nebraska, an effort to do away with that conservative state’s death penalty fell just short. In New Mexico, the state house of representatives voted to repeal the death penalty. Meanwhile, Rachel Lyon, an acclaimed documentary filmmaker just aired a powerful television special on PBS about the death penalty called Race to Execution. And in late March the Chicago Tribune, once the signpost of conservatism in print journalism, called for the abolition of the death penalty based in part upon the paper’s historic (recent) coverage of capital punishment in Illinois.

Support Remains Strong, But Change Is Coming

None of this means the end of capital punishment is near. Earlier this year, for example, legistlators in Virginia broadened the scope of that state’s capital sentencing scheme to extend death penalty eligibility to individuals involved in, but not the perpetrators of, certain capital crimes. A majority of Americans still support capital punishment in one form or another. There are still states, mostly in the South and the West, where juries are regularly 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.” See

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, need firming up. These folks argue, and with good reason if Supreme Court precedent is any guide, that if more is not 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, as Maryland’s O’Malley did, 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—even in Texas, a bellwether state for capital punishment—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. That list surely will grow in the months and years to come.

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 did not start in the past six months. But it sure looks like it is picking up the pace.

Andrew Cohen

Andrew Cohen is CBS News’s chief legal analyst.