New Momentum for Death Penalty Reform

The political tide is turning on the use of the death penalty in this country, as evidenced by three major developments. Recently, the U.S. Supreme Court issued a ruling barring the execution of the mentally retarded. The court also required that only a jury, not a judge, can impose capital punishment, invalidating the death-sentencing procedures in at least five states. And in May, Maryland Gov. Parris Glendening issued a two-year moratorium on the use of the death penalty in his state, so that a study could be conducted on the fairness of sentencing practices, focusing on racial disparities.

Approximately 168 inmates await execution in AZ, CO, ID, MT, and NE-the states with laws that allow judges alone to impose capital punishment. The ruling also cast doubt on procedures used in FL, AL, IN, and DE, where death sentences can be handed down by judges following jury recommendations. The Colorado legislature has already approved changes to state law to comply with the Supreme Court ruling.

Illinois Gov. George Ryan paved the way for much of the reform work in the states. Describing the capital punishment system as “fraught with error,” he implemented the first statewide moratorium on executions in January 2000, after Illinois had executed 12 men and freed 13 innocent men from death row since reinstating the death penalty in 1977.

Following Ryan’s decision, a number of states-including some that have actively pursued the use of the death penalty-seriously considered major reforms in 2000-01. Texas, which executes felons at the highest rate in the nation, now shows signs of change. Most remarkably, the legislature enacted a law in 2001 that gives inmates access to DNA testing if it was not available at trial, and requires the state to preserve DNA evidence.

“I hope it provides people who have been convicted erroneously the greatest opportunity to prove themselves innocent,” said the bill’s sponsor, Texas Rep. Harold Dutton. Although Gov. Rick Perry vetoed the measure, the Texas legislature also passed a bill prohibiting the execution of mentally-retarded individuals.

Promising news can also be found in Virginia, the state with the second-highest rate of executions. A bipartisan commission was formed last year to investigate the integrity of the state’s death penalty practices. The legislature also passed a law allowing post-conviction DNA testing for death row inmates and other felons, if biological evidence had not been discovered or tested at the time of conviction.

These new efforts to transform death penalty policy come on the heels of a dramatic shift in public opinion. While Americans continue to support capital punishment in theory, a majority now objects to it in practice. A July 2001 Harris Interactive survey found that 94 percent of Americans believe innocent people are sometimes convicted of murder. Eighty percent of Americans believe that an innocent person has been executed in the past five years, according to a June 2000 Gallup poll. Only 14 percent believe no wrongful execution has happened. Even in Harris County, Texas, where more people have been sentenced to death than in any other city or state in the country, a January 2001 Houston Chronicle poll reported that 67 percent thought it was somewhat or very likely that an innocent person has been executed in this country in recent years.

The public’s perception is well founded. Since 1973 at least 100 people have been released from death rows in 22 states because of significant evidence of innocence. At least 23 innocent people were executed in the United States during the 20th century, in all more than 400 people were wrongfully convicted of capital offenses.

Among the model policies for death penalty reform, two stand out. The Innocence Protection Act would reduce the risk that innocent persons are executed by allowing prisoners on death row to request DNA testing of evidence in the government’s possession. The act would also ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing, and would require the preservation of DNA evidence.

Americans overwhelmingly believe death row inmates should have the right to use DNA testing to prove their innocence. A June 2000 Newsweek poll found that 95 percent agreed that “states should permit DNA testing in all cases where it might prove a person’s guilt or innocence.” The Death Penalty Moratorium Act would suspend the use of the death penalty while a commission studies its fairness. The commission would study all aspects of the state’s death penalty process and report its findings and conclusions to the legislature while the moratorium is in place.

The Chicago Sun-Times reported in 2001 that 70 percent of Illinois residents approve of Gov. Ryan’s choice to institute a moratorium. Further evidence that Americans strongly support a suspension of the death penalty is documented in a July 2000 NBC News/Wall Street Journal poll in which 63 percent of respondents favored “a suspension of the death penalty until questions about its fairness can be studied.” Only 30 percent opposed the halting of executions.

As public awareness about inequities and errors in the system has increased over recent years, Americans are more likely to support policies that reexamine capital punishment and redress such flaws. While it is reasonable to believe that the September 11 attacks on America could stir up more support for the use of the death penalty, state policymakers should not ignore the significant reforms in capital punishment in recent years. The public questions the current capital punishment system, and Americans are ready for a change. The time is ripe for meaningful reform to continue.

For copies of the model policies mentioned in this article, and for additional death penalty reform resources, visit CPA’s death penalty resource page.