This is a full-page spread on page 2. There are 3 major articles and

a box, by the Le Monde regular correspondent in the United States.

"The Debate on the Death Penalty Emerges in the American Election

Campaign," by Sylvie Kauffmann

In 1998, the Democratic presidential candidate, Michael Dukakis,

was caught in a trap when, during a televised debate with George Bush,

candidate to succeed Ronald Reagan, a journalist asked him how he would feel if his own wife was raped and murdered: would he still be against the death penalty? The candidate's positive answer, given in a cold and mechanical tone, had a disastrous effect and was considered as one of those moments which leads inexorably to failure.

4 years later, Bill Clinton, young governor of Arkansas, running

for President under the slogan "new Democrat", was determined not to make the same mistake: when the execution date of a condemned man, Ricky Ray Rector, came along in his state, he broke off campaigning to be present in Arkansas at the moment of the execution.

This act horrified a few human rights militants who had asked Mr.

Clinton to spare the life of this mentally handicapped man, but it

bolstered his image of being tough on crime. Bill Clinton won the

election, beating George Bush.

This dynamic is in the process of turning around in the middle of the

2000 election campaign. The Republican candidate is again named George Bush, but it is the son this time, Governor of Texas. And suddenly, the 134 executions - 3 of them last week - over which he has presided since becoming Governor in 1995 are no longer an exploit he can put forward, but a dubious record which he has to justify.

June 1st, for the 1st time in 5 years, George W. Bush granted a 30 day

stay to a condemned man on the point of being executed, Ricky McGinn,

so that DNA tests could be done. This week, with the approach of

the execution date, June 22nd, of Gary Graham, minor at the time of the

murder for which he was convicted and whose guilt rests on the testimony

of a single witness, the subject is at the center of the stage again.

What has happened? The culprit, paradoxically, is another Governor, a

Republican like George W. Bush, and also a partisan of the death penalty,

George Ryan, Governor of the important state of Illinois. By announcing

a moratorium on January 31st on executions in his state until a

commission has told him whether it is possible or not to sentence to

death without a margin of error, Mr. Ryan has legitimized the questions

and permitted the debate to go beyond the narrow framework of militants

opposed to the death penalty.

And, logically, he has introduced doubt: if Illinois, where twelve

executions have been carried out since the reestablishment of the death

penalty in 1976, admits having a problem with judicial errors, how could

the states which have carried out 50, even 134 executions be exempt from them? "George W. Bush has confidence in his system," notes Judge McGarr, President of the Commission on the Death Penalty created by the Governor of Illinois, an avowed Republican. "I too had confidence. Not any more.

If I were Governor of Texas, I would be a lot more worried than he is."

When in February the first questions on the possibility of judicial

errors arose, the Republican Governor swept them aside with assurance,

with an ironic look, with categorical answers that said in substance:

maybe in Illinois, not here. The Governor was "absolutely sure" of the

guilt of all of those sentenced to death in Texas.

But the questions persisted, the initiatives in favor of the

generalization of genetic tests for those sentenced to death, perceived as

an initial rampart against errors, multiplied thoughout the country, even

reaching the American Senate. On June 11th, a CHICAGO TRIBUNE report

revealed that, out of the 131 people executed as of that date under the

reign of Governor Bush, 40 had been sentenced on the testimony of a single

prosecution witness and without material proof, and a third had been

defended by lawyers who were later sanctioned, suspended or even disbarred

for serious misconduct.

Texas, where a third of those sentenced to death in the United

States are executed, is in the line of fire, and George W. Bush is

obviously in the forefront: it is now his slogan, "compassionate

conservatism" which risks being damaged.

Prudently silent on the subject, Vice-President Al Gore, Bush's

Democratic adversary, has just emerged from his reserve. "Strongly in

favor of the death penalty," Mr. Gore admits that recent studies which

underline the wide margin of error in death sentences "make him

uncomfortable." "I believe that a very careful analysis is under

way. And if it justifies new measures, I am very open on that subject,"

he says. While remaining guarded, Al Gore, who, never having been a

state Govenor, does not run the risk of seeing his record on the death

penalty gone over, hints that if the debate grows larger during the

campaign, he would be ready to participate.

The Catholic leaders, whose weight no candidate can ignore, are rushing

into the breach. The Archbishop of Los Angeles at the end of May

asked the Governor of California to follow the example of the Governor of

Illinois and suspend executions. The Archbishop of Baltimore was anxious

to salute the decision by the Governor of Maryland to commute the death

sentence of a man about whose guilt he was not "absolutely certain."

The polls, certainly, still show that most people favor capital

punishment. But, in a period of prosperity and dropping crime rates,

neither Al Gore nor George Bush should underestimate the emotional weight

of a debate on judicial error.

***

"A Pioneer Commission in Illinois for a Great Leap into the Unknown," by

Sylvie Kauffman

During his eighteen years spent in the service of American Federal

Justice, the death penalty hardly came to the mind of Judge Frank McGarr.

"I never had to send anyone to the electric chair," he observes.

"Fortunately." Like most penal justice in the United States, capital

punishment depends on the states: only a few crimes are subject to the

death penalty on the Federal level. From his very comfortable seat as a

Federal Judge, Judge McGarr, a native a Chicago, a good Republican and a

highly respected magistrate, "simply presumed that everything was fine in

the State Courts" and did not worry further.

Until the day in November 1999 when he came across a big report in

the CHICAGO TRIBUNE, entitled "The Failure of the Death Penalty in

Illinois: How Prejudice, Errors and Incompetence Made the Most Severe

Punishment the Least Credible." In five articles, fruit of many months of

investigation, Steve Mills and Ken Armstrong, two of the daily newspaper's

reporters, explained methodically why, in thirteen years, Illinois had

been led to release twelve condemned men, as many as it had executed.

Obviously there was something rotten in the judicial system of this

big Midwestern state: shady or overly zealous prosecutors, jailhouse

snitches too easily believed, police torturers, unscrupulous medico-legal

laboratories, incompetent or negligent lawyers, flagrant racism... Out of

the 285 death sentences handed down initially in Illinois since 1977 and

studied by the journalists, 127 had to be overturned or bound over for new

trial. The picture painted by the CHICAGO TRIBUNE report revealed a

laxness, a carelessness and an arbitrariness which were especially shocking

because the consequences could be, essentially, irreparable. "Death, as a

punishment, is final, isn't it?" the old judge agrees with bitter irony.

The possibility opened by science of using genetic tests, then the

investigations by the journalism students of Professor David Protess, of

Northwestern University in Chicago, the law students of Professor Lawrence

Marshall of the same university, those of Professor Richard Kling of

Chicago-Kent College of Law, had already permitted righting a few terrible

judicial errors before it was too late, but they passed for isolated cases.

By showing systematic judicial error, the CHICAGO TRIBUNE report opened

the eyes of many people in Chicago, including Judge McGarr. "It was at

that moment," he admits, "that my confidence in the judicial system was

shaken."

At 78, Judge McGarr is no longer on the bench, but very sprightly and

dignified in his three-piece suit, still a member of the bar,

he has just returned to service. Frank McGarr is co-President of the

Commission on the Death Penalty created by Governor George Ryan. On

January 31st, 2 weeks after the release of the 13th innocent person

sentenced to death by mistake, this Republican Governor, partisan of the

death penalty but deeply troubled by the possibility of errors, decreed a

moratorium on executions: "Until I can be sure that every person sentenced

to death in Illinois is really guilty, until I can be sure, with complete

moral certainty, that no innocent man, no innocent woman will face lethal

injection, no one will suffer that fate," Mr. Ryan declared.

Governor Ryan's decision served as detonator for the debate about the

death penalty in the United States. At the head of his Commission,

Judge McGarr is very much aware of the stakes which implicitly arise from

the mission he has been given: to determine whether or not it is possible

to apply the death penalty without risk of error.

"If the conclusion we reach is that the system cannot be fixed,

then that will mean that we are against the death penalty," he summarizes.

And in this hypothesis, the whole edifice crumbles: this is a question of

the future of the death penalty. Governor Ryan is asking, for resuming

executions, for "a 100% guarantee" against judicial error. Is that

possible? "No, of course not," the Judge calmly replies. "That kind of

security does not exist in life."

Why Illinois? A state like Florida, governed by another Bush, the

younger brother Jeb, commits even more judicial errors - twenty people

sentenced to death have been found innocent there in these last few years -

without public opinion seeming to be moved.

It is a unique combination of determined university professors,

motivated students, and particularly vigilant media which have made

Illinois a pioneer. "This experience makes me both optimistic and bitter,"

comments David Protess, whose students have already saved three condemned

men. "We should not be these people's last hope." But even in Chicago, no

one knows where the dynamic thus created will lead. It is a great leap

into the unknown. Famous attorney, massive and truculent, William Kunkle

believes wholeheartedly that "certain crimes, the most horrible, justify

the most extreme punishment: death. There are crimes which do not merit

redemption. I don't think that Macbeth would have gotten off with life in

prison." For him, the debate should be presented differently, "in a brutal

way, perhaps, not very attractive: for one innocent prisoner executed, how

many criminals are left free to kill?"

More nuanced, David Erickson, prosecutor, wants to limit the field

of application of the death penalty, which the legislators, in a repressive

frenzy, have considerably extended in Illinois. When capital punishment

was reestablished, there were seven aggravating circumstances (murder of a

child, of a policeman, rape, etc.) on the basis of which the prosecutor

could ask for the death penalty. "Today there are 37. I have seen this

moratorium coming for a long time." He remains convinced that "someone who

has raped, tortured and killed a six-year-old child cannot be reformed; the

death penalty is the appropriate punishment. But people want the death

penalty with certainties. Is it possible? The real question this society

must ask itself is what it wants on the moral and philosophical level."

The abolitionists fear tinkering to save the death penalty, a rush

to DNA testing as a panacea against judicial errors when in fact their use

is very limited. Charles Hoffmann, lawyer, admits that the system can be

"considerably improved. But we are covering our faces," he says. "No

reform will eliminate racism from this system."

Eric Zorn, who writes most of his columns for the CHICAGO TRIBUNE

on this subject, fears that "the various commissions will produce a handful

of recommendations, stopping the use of jailhouse snitches as witnesses,

encouraging the use of DNA testing, a little tinkering... and that the

public will be satisfied with it."

The powerful victims' rights associations, which have succeeded, in

recent years, in increasing their rights at the expense of the defendants,

have not even weighed in yet in this debate. The battle is only beginning.

***

"'Keep the Money and Give Me Back the Time," by Sylvie Kauffman

How does one repair violated innocence? How does one compensate years

of life unjustly sacrificed, spent in prison awaiting a death that

one does not deserve? The state of Illinois has not really begun to ask

these questions, in spite of the liberation, since 1987, of thirteen

condemned men who were victims of judicial error. The urgency is for the

moment elsewhere: prevent the execution of innocent people.

Perry Cobb and Darby Tillis, the first men condemned to death who

were found innocent in Illinois, have learned at their expense that for

them, the urgency is over. When they finally realized what they had to do

to claim damages, it was too late: the time limit had passed.

Theoretically they still have a right to some 90,000 dollars "compensation"

for nine years spent in prison, four of them on death row, for a double

murder they did not commit, but the procedure is so complicated - beginning

with a request for pardon for a crime of which they have been acquitted -

that lawyers are not rushing to take their cases.

13 years later, they have not received a cent. "I wasn't angry when I

got out, but I am now," finally confesses Darby Tillis, 57, when he

talks about the policemen, prosecutors or lawyers whose

incompetence or ill will caused these judicial errors and who are

still on the job. Out of the 13 liberated, only 4 have received a

payment.

Dennis Williams, whom we met 4 years ago, 3 days after he got off

death row, where he had spent 18 years, got one of the best lawyers

and negotiated a settlement of 12 million dollars: a record. At 42,

he is trying to rebuild his life. "He did what we should have done, sue

the court," Perry Cobb comments wistfully.

But he is 58 and has the irremediable feeling of a broken life.

"You know what? Let them keep the money and give me back the time!" he

cries. Before, he was "a good artist," singer and author. "But I don't

feel like writing songs anymore. I am empty. Not a day goes by, since I

am supposed to be free, that I don't think about death row." A broken

life? Several, in his wake. While he was in prison, his daughter was

raped. "It wouldn't have happened if I had been there." His children

didn't play with the other children at school because "they were told

their daddy was a murderer."

"I was freed from death row but I am not free, death row is still there.

I have a son, and every day I live with him, I have to protect him

from the horror of death row," says Darby Tillis. Their judicial odyssey

is, all by itself, a concentrate of all that is wrong with this system.

Arrested in 1977 for the murder of 2 whites in a holdup of a hot dog

stand on the denunciation of a vague acquaintance, they were tried five

times. They could swear they weren't there, but " they wanted to make an

example of us, to show that the murder of whites by blacks would not be

tolerated," says Darby Tillis.

Both black, they were tried by white jurors, on the sole testimony of a

dubious witness who, a few years later, confessed that he had lied and

denounced the real culprits. Finally the judge who presided over their

trial, Thomas Maloney, is today in prison for corruption, "not because he

sent innocent men to prison, because he accepted bribes," underlines Darby

Tillis.

When, finally, a judge ended up acquitting them, he was so shocked

by the weakness of the case that he called the testimony against them an

"insult to humanity."

***

"The Condemned Man Who Is Embarrassing George W. Bush"

The Republican candidate for the White House and Governor of Texas

George W. Bush is confronted with a growing polemic over the execution of a

convict, Gary Graham, set for Thursday June 22nd. The man, today 38 and a

minor at the time of the crime, was sentenced for murder in 1981 in

Houston. Gary Graham, who has changed his name to Shaka Sankofa to honor

his African origins, contests the testimony of the sole eyewitness to the

crime and is demanding that his case be reopened. Mr. Bush, who has signed

134 death warrants since he was elected Governor of Texas in 1995, still

says he is convinced that no innocent man has been executed in Texas during

his term.

According to a study by Columbia University, published June 12th,

2/3 of the death sentences handed down initially between 1976 and

1995 in the United States have had to be modified on appeal because of

negligence in the preparation or the procedure.

(source: Le Monde, Paris, France)