Editorial


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

— Justice Sandra Day O’Connor, July 22001

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.