by Richard C. Dieter
Introduction
To understand the rapid evolution in the views of the Presidential candidates regarding the death penalty, it is essential to look at the sweep of events of the past few years as the public became more aware of the problems within the capital punishment system. Few could have predicted the sea-change in the overall perception on this issue. While the candidates originally said very little about the death penalty and perhaps assumed that the similarity of their stances meant that it would not arise in the campaigns, the reality has been that the death penalty is in the news every day and the candidates are being forced to define and refine their views on this always controversial subject. Both of the major parties’ candidates have staked out positions, only to have to modify these positions as events have overtaken them.
Recent Developments in the Death Penalty Debate
The arrival of the new millennium has been accompanied by a surge of interest and activity focused on the death penalty in the United States. Concerns about capital punishment have been building for a number of years due to the work of many individuals, organizations, and because of the glaring inequities and inaccuracies in the way the death penalty is applied.
Gradually, the issue of innocence emerged as the greatest challenge to capital punishment. The growing list of exonerated individuals freed from death row, the national conference in Chicago in 1998 in which the faces of these individuals became familiar to the American public, and the incredible story of one such inmate, Anthony Porter, led many to conclude that the death penalty system is broken and may be irreparable.
Porter had been two days away from execution when a stay was granted to review his mental competency. During that stay, journalism students from Northwestern’s School of Journalism were assigned to investigate his case by their professor. The students found that a key witness had lied, that the crime almost certainly could not have occurred as described at trial, and, most amazingly, they found the man who actually confessed to the crime. Anthony Porter was freed into the welcoming arms of the students and teacher, and the nation shook its head in disbelief that the criminal justice system had failed so miserably.
With the image of Porter’s release in mind, and troubled by an exposé of death penalty problems by the Chicago Tribune, Governor George Ryan of Illinois declared this year that no more executions would take place in his state until he became confident that reliability had been restored. This single act gave affirmation to the years of work and criticism of the death penalty which had come from many quarters. Gov. Ryan is a Republican and a death penalty supporter. He is also the chairman of Gov. George Bush’s presidential campaign in Illinois. His conclusion that the system of capital punishment was so flawed as to require its cessation, has had a profound effect on the public debate and the views of other candidates for public office.
Early Expressions During Presidential Primaries
Virtually all the major presidential candidates in both the Republican and Democratic primaries expressed their support for the death penalty. Democrat Bill Bradley noted that as a senator he had supported the expansion of the federal death penalty. Al Gore said he would do the same where appropriate if he were President. Republicans Gary Bauer, George W. Bush, Steve Forbes, Orrin Hatch, Alan Keyes, and John McCain all supported the death penalty. The Reform Party’s newest leader, Pat Buchanan, indicated his strong support, though the Party’s most charismatic figure, Governor Jesse Ventura of Minnesota, has become a recent opponent of the death penalty.
Only the newest candidate in the Presidential race has expressed his opposition to the death penalty. Green Party nominee Ralph Nader recently said on Meet the Press: “Since I was a law student at Harvard, I have been against the death penalty. It does not deter. It is severely discriminatory against minorities, especially since they’re given no competent legal counsel defense in many cases. It’s a system that has to be perfect. You cannot execute one innocent person. No system is perfect.”
Current Controversies
Nevertheless, with so much unanimity among the major candidates, it was thought that the death penalty would have no role in the campaign. That has not turned out to be true. Time and again, Governor Bush and Vice President Gore have been asked about the death penalty, especially as it relates to the troublesome issue of innocence.
Perhaps it was inevitable that questions about the death penalty would be thrust at Bush, if only because Texas leads the country by far in executions. More executions have occurred in Texas under the 5 years of Gov. Bush’s tenure than in any other state in all of the past 24 years since the death penalty was reinstated. And it is not only the sheer number of executions: Texas has vigorously gone forward with executions of juvenile offenders, the mentally retarded, foreign nationals not informed of their rights under international treaties, defendants with sleeping lawyers, and others with serious doubts about their guilt.
Candidate Bush first found himself being scrutinized on the death penalty when he reportedly mocked the final entreaty of Karla Faye Tucker before she was executed, imitating her saying: “Please, don’t kill me.” He also smirked when talking about a Texas defendant whose lawyer slept during part of the trial.
But the issue of innocence has been the one most often raised. When asked about the many executions under his watch, Bush refused to acknowledge the growing skepticism around the country about the reliability of the death penalty system: “All I can tell you,” Bush said, “is that for the four years I’ve been governor, I am confident we have not executed an innocent person, and I’m confident that the system has worked to make sure there is full access to the courts.”
Many people took that as over-confidence in a system that was far from perfect. Bush, himself, appeared to back away from such a sweeping generalization when he supported post-trial DNA testing if it can “erase any doubts” about a murder case. Since in many capital cases, DNA evidence has only arisen after the trial and all the appeals have been denied, acknowledging that more investigation is needed is admitting that the judicial process can make mistakes even when it has concluded that someone is guilty.
Bush’s statement was quickly put to the test in the case of Ricky McGinn, who was days away from execution. The defense said that there was additional evidence which had not been subjected to DNA testing. At the last minute, and despite the denial by the courts for such testing and the rejection of clemency by the Pardons Board, Bush granted his first 30-day reprieve in a death case since taking office. It now appears that the DNA testing still points to McGinn as the guilty party, but a precedent had been set for delay when there was doubt. (No delay, however, was granted to Gary Graham, who had been convicted on the testimony of a single eyewitness.)
Al Gore has also supported the notion of DNA testing where it can make the system more accurate and fair. However, Gore rejected the idea of a moratorium on federal executions. Gore has said that when a state has problems such as those in Illinois, a moratorium on executions is appropriate. But Gore’s position has been shifting, as well. He expressed surprise to hear that there are so many mistakes in capital cases, as revealed in a study from Columbia Law School this year. The study found that serious mistakes requiring reversal were made in two-thirds of the death penalty trials since 1973. Gore responded, “If there is a study that shows a large number of mistakes, that has to make you uncomfortable. I have assumed up until very recently that the mistakes were rare and unusual.”
Gore has also endorsed the stay of the first federal execution which was ordered by President Clinton to allow more time to review the federal clemency process and to study the racial and geographical disparities of federal capital prosecutions.
The media recently dug deep to come up with a question for both candidates about the unlikely prospect of executing a pregnant woman. Gov. Bush said he would not allow such an execution until the child was born, while Vice President Gore first replied that it should be a matter of choice for the woman. He later said that he, too, would not allow such an execution to go forward. Both candidates missed the fact that the U.S. is already a party to an international treaty which explicitly forbids such executions.
Nevertheless, this inquiry shows that the candidates are likely to be asked more questions about the death penalty, not because they have differing views, but because it is one issue on which many Americans have strong positions, and yet are intrigued about the rapidly changing landscape in which this issue is being reviewed. The death penalty, and what should be done about it, will be a test of each candidate’s character and may help to open up the debate from the one-sided support that so many politicians have given it in the past.
-Richard Dieter is an attorney and Executive Director of the Death Penalty Information Center (DPIC) in Washington, D.C. He is also an adjunct professor at the Columbus School of Law. DPIC is a non-profit organization which researches and analyzes problems in the application of the death penalty.
