The New York Times

February 4, 2000

The Justice Americans Demand

By DAVID FRUM

WASHINGTON -- Must we make the same mistakes over and over again? On Monday, the Republican governor of Illinois, George Ryan, suspended executions in his state while he investigates how 13 men could have been wrongly sentenced to death. (Fortunately, none of the executions were carried out.) Opponents of capital punishment, like the unfortunately named Quixote Center, have seized on Mr. Ryan's action as an opportunity to call for a moratorium on all executions nationwide.

And who knows? There might possibly be a governor or two ready to listen. But let's hope not. For in their zeal to halt a punishment they regard as barbaric, death-penalty opponents have helped corrode American trust in the democratic system.

Over the past 30 years, Americans have expressed steadily increasing support for the death penalty. In 1965, before the great crime wave of the 1970's, a Harris poll reported that only 38 percent of Americans supported capital punishment; 47 percent opposed it. Today, 71 percent favor it; 21 percent oppose it.

Thwarted politically, death-penalty opponents looked to the courts to suppress executions for them. For a long time, they succeeded. Their greatest victory came in 1972, when a 5-4 majority of the Supreme Court declared capital punishment as carried out by most states a "cruel and unusual punishment" prohibited by the Eighth Amendment.

Even after the Supreme Court reversed itself in 1976, the lower federal courts could be counted on to mire each and every death-penalty case in a tangle of litigation. Although juries imposed the death penalty more and more frequently in the 1980's and 1990's, it remains true that the number of Americans executed in any given year has yet to exceed the number killed by lightning. And even when death sentences are finally carried out, it is only after immense delays: the 68 prisoners executed in 1998 spent an average of 10 years and 10 months on death row.

The spectacle of lawyers and judges tying up capital cases in never-ending procedural review, while crime rates skyrocketed, helped discredit opposition to the death penalty. More ominously, it also helped discredit the courts themselves.

The percentage of Americans expressing "great confidence" in the Supreme Court fell even more rapidly from 1965 to 1979 than the percentage expressing "great confidence" in Congress and the presidency, according to the Harris poll.

Opponents of the death penalty are unchagrined. Because they believe that their cause is a righteous one, they regard all tactics as legitimate. Certainly, shifting their focus from the courts to the governors is welcome; after all, governors are elected and accountable in a way that the federal courts are not.

But even with elected officials, death-penalty opponents are proceeding in a way that public opinion is bound sooner or later to perceive as underhanded. Instead of simply working to elect governors who explicitly oppose capital punishment, they are hoping to persuade governors who support executions to flip-flop after the election -- and to justify the switch by disguising it as a merely temporary precaution.

The plan might succeed. But such success would come at a very high price. One of the most disturbing features of modern American life is the cynicism expressed by ordinary citizens about the workings of their government. Their loss of trust in their institutions has generally coincided with a loss of faith in their ability to control those institutions.

On the campaign trail, Democrats like Bill Bradley promise to reignite a now vanished idealism. What needs to be understood, though, is that it is the refusal of democratic liberalism to accept popular will on burning issues like the death penalty that helped snuff out that idealism in the first place.

Governor Ryan acted properly: If state justice seems to be miscarrying, it's a governor's job to find out why and right it. But once Mr. Ryan has found the answer, the criminal laws of Illinois must be honored.

When death-penalty opponents call on governors to flout democratically enacted laws, they are inviting those governors to abuse their power, alienating and embittering their electorates. If you treat people like subjects, it is hardly surprising that they cease to feel like citizens.

David Frum, a senior fellow at the Manhattan Institute, is the author, most recently, of "How We Got Here: The 70s: The Decade That Brought You Modern Life (For Better or Worse)."