If statistics are any indication, the system may well be allowing some innocent defendants to be executed.

— Justice Sandra Day O’Connor, July 2, 2001

O’Connor’s insinuation — that the nation’s legal system is actively killing innocent citizens — is supported by increasingly disturbing data. Since the death penalty was reinstated in 1973, 96 inmates sentenced to die have been freed from death row, 16 in just the past 30 months. Roughly two-thirds of all capital convictions are overturned on appeal. But because the lawyering available to death-row inmates is so uneven, few believe the appeals process catches every wrongful conviction.

As a high-court swing vote, O’Connor’s opinions on matters such as capital punishment are influential. But in this case, she is hardly leading the charge. Many otherwise ardent death-penalty supporters have long since accepted that the system is flawed and called for a moratorium while it is repaired. Concurrently, public support for capital punishment has declined to a 19-year low.

Far from the lofty chambers of the high court, the effects of these doubts are easy to see. In the past 18 months, 36 of the nation’s 38 death-penalty states — including such states as Texas, Florida, Virginia and Missouri, which among them account for more than half of all executions since 1976 — have debated a range of restrictive capital-punishment reforms, including:

  • Moratoriums to suspend executions
  • Commissions to study the death penalty’s flaws
  • Provisions to ensure DNA testing for capital defendants and death-row inmates
  • Bans on the execution of the mentally retarded, those with an IQ below 70
  • Improved representation of indigent defendants. who are most likely to get death
  • Offering juries life without parole as an alternative to a death sentence.

Depending on who’s doing the talking, the motivating fear for reform is either that the nation’s legal system is discredited or that an innocent person (make that, another innocent person) will be executed. Either way, replacing death with a sentence of life without parole would settle those doubts for good. In the meantime, O’Connor’s belated awareness of the systemic injustice of capital punishment handily reinforces the growing bipartisan support for a moratorium, which in turn will allow investigating lawmakers and jurists to confirm what they already suspect: The death penalty’s flaws are irremediable as well as intolerable.