Risking the Innocent in Pursuit of Revenge

You don’t have to be a liberal to oppose the death penalty.

Lately, in fact, it seems that you don’t even have to be against the death penalty to be against the death penalty. If you’re a conservative who is suddenly worried about executing the innocent, you can endorse a “moratorium” on state murder.

With the precipitous drop in rates of violent crime during the past decade, and the startling surge of evidence that innocent people are being executed, Americans who once thoughtlessly endorsed state killings are thinking again (or perhaps thinking, in the sense of using their brains, for the first time on this subject).

Among the most recent converts to rationality are Pat Robertson, the televangelist-politician whose clemency plea for born-again killer Karla Faye Tucker failed to save her; and conservative pundit George Will, who wittily derided capital punishment as “another government program” after reading Actual Innocence , the powerful new book by Barry Scheck, Peter Neufeld and Jim Dwyer.

Such right-wing opinion makers are following closely behind the Governor of Illinois-another conservative Republican who still endorses the death penalty but who recently instituted a moratorium on executions in his state. As almost everyone probably knows, journalism students in Illinois have uncovered several cases of death row convicts who were innocent. Their Governor says he favors public executions in principle but isn’t so sure about them in practice.

The multifaceted problem of enforcing the death penalty without murdering the innocent has, of course, always been among the principal arguments in opposition to capital punishment. States where the death penalty is most often used are also historically states where poor (and often black) criminal defendants are most likely to be deprived of basic constitutional rights.

There has been more than one capital case in which the defendant’s incompetent, court-appointed lawyer slept through the proceedings that sent his client to death row. There have even been cases where state prosecutors and courts refused to allow the DNA testing that might establish the innocence or guilt of a dubiously convicted man awaiting death.

In other words, the horrific truth about the death penalty’s cost in innocent lives is emerging at last, and making some conservatives nervous. The likelihood that the wrong people would be fried has always been perfectly obvious as a matter of simple logic. But it is no longer arguable that this kind of court-ordered crime has happened, is happening right now and will happen again. Incontrovertible forensic proof that a significant percentage of public executions are actually ritual murders may be found today in any local bookstore.

For politicians like the Governor of Illinois, the President of the United States and the First Lady-all of whom continue to affirm their belief in capital punishment as a matter of principle (or expediency)-the notion of a “moratorium” should be quite appealing. At the very least, Hillary Rodham Clinton ought to endorse a moratorium immediately.

It’s a squishy position, of course. It seeks to satisfy the public’s atavistic urge for revenge while evading the inevitable consequences of that impulse. But it’s far better than the answer given by George W. Bush, who has overseen the executions of 47 people during the past year and who recently proclaimed his moral certainty that everyone on death row in Texas is guilty.

This proclamation by Mr. Bush doesn’t hold up under a close examination of his state’s recent record. Last year, courts ordered the release of two men who were on the verge of being executed by Texas authorities. One of them was the victim of a county prosecutor who withheld exculpatory evidence, while the likely innocence of the other was established by DNA testing 20 years after his initial conviction.

Apparently those close calls didn’t shake the Texas Governor’s dumb confidence. But what about the appalling case of David Spence? He was executed on Mr. Bush’s watch in 1997 despite the grave doubts about his conviction expressed by the cops who originally investigated his case. Both the police lieutenant who supervised the homicide probe and the detective who conducted it have stated unequivocally that they believe the late Spence was innocent.

Rather than continuing to ignore injustice, Mr. Bush should try to do honor to the memory of his late grandfather Prescott Bush. In a 1955 Lincoln Day address, Senator Bush implored his fellow Republicans to heed the words of President Eisenhower: “In all those things which deal with people, be liberal, be human.” Prescott Bush acted in that decent spirit by sponsoring legislation to abolish mandatory capital punishment in the District of Columbia in 1959, as every state already had done.

If “compassionate conservatism” is anything more than a cheap slogan, the Senator’s smug grandson ought to consult his conscience before he approves another death warrant.