The New York Times

Saturday, February 19, 2000

New Looks at the Death Penalty/Editorial

America is at last beginning to grapple honestly with the profound flaws of the death penalty system. Late last month Gov. George Ryan of Illinois, a Republican, became the first governor in a death penalty state to declare a moratorium on executions, citing well-founded concerns about his state's "Shameful record of convicting innocent people and putting them on death row." That has now been followed by moves in Congress and the executive branch to review death penalty policies from a national prospective.

Senator Russell Feingold of Wisconsin has urged President Clinton to suspend all federal executions pending a review of death penalty procedures similar to the one Governor Ryan has initiated in Illinois. Problems of inadequate legal representation, lack of access to DNA testing, police misconduct, racial bias and even simple errors are not unique to Illinois, Mr. Feingold noted.

The Justice Department has also initiated its own review to determine whether the federal death penalty system unfairly discriminates against racial minorities. At his news conference this week, Mr. Clinton praised the death penalty moratorium in Illinois, but indicated he thought a federal moratorium was unnecessary. Mr. Feingold has urged him to reconsider. Given his lame-duck status, the president can afford to call a halt without worrying about being falsely labeled soft on crime. Moreover, the fact that a Republican governor was first to announce a moratorium should minimize any concern about Vice President Al Gore being so labeled.

Congress need not wait for the administration to act. Last week Senator Patrick Leahy, Democratic of Vermont, introduced legislation to address "the growing national crisis" in how capital punishment is administered. This promising measure, the Innocence Protection Act of 2000, stops short of abolishing the death penalty, the course we hope the nation will eventually follow. But key provisions would lessen the chance of unfairness and deadly error by making DNA testing available to both state and federal inmates and by setting national standards to ensure that competent lawyers are appointed for capital defendants.

Without such protection, there is a grave possibility of juridical error. Nationally, 612 people have been executed since the Supreme Court reinstated capital punishment in 1976. During the same period, 81 people in 21 states have been found innocent and released from death row - some within hours of being executed. That suggests that many who were executed might also been innocent.

Neither the states nor the courts are providing adequate protection against awful miscarriages of justice. In Texas, the nation's leader in executions, courts have upheld death sentences in cases where defense lawyers slept during big portions of the trials. Lately, Congress and Supreme Court have exacerbated the danger of mistaken executions by curtailing appeal and habeas corpus rights. They have also ignored the festering problem of inadequate legal representation that caused the American Bar Association to call for a death penalty moratorium three years ago. Even death penalty supporters have to be troubled by a system shown to have a high risk of executing the innocent.