FOR DECLARING a moratorium on executions in his state, Illinois Governor George Ryan is winning high praise from the enemies of capital punishment. The doyenne of the Washington commentariat, Mary McGrory, beatifies him as a "newly-installed hero in the progressive pantheon" and quotes a joyful Mario Cuomo: "This act was beautiful."
 During a news conference in Chicago, Illinois Governor George Ryan announces a moratorium on executions in his state. |
But it is the supporters of capital punishment, not those who want it abolished, who owe Ryan a debt of gratitude. As a matter of morality and logic, the case for the death penalty is unassailable. It has the added advantage of being popular -- not surprising in a country that has endured 500,000 murders in the last 25 years. But all it would take to shatter the public's support for capital punishment is for a single inmate to be put to death for a murder he didn't commit.
So far that has never happened. But in Illinois, where several death row inmates have turned out to be innocent, there have been some close calls. One man, Anthony Porter, was just two days away from a lethal injection when his execution was stayed. He was exonerated last year when the real killer was persuaded to confess -- not by prosecutors but by a private investigator working with journalism students at Northwestern University.
That near-horror, plus a Chicago Tribune expose of error and incompetence in the Cook County criminal justice system, led Ryan to act. "I have grave concerns about our state's shameful record of convicting innocent people and putting them on death row," he said. "Until I can be sure ... that no innocent man or woman is facing lethal injection, no one will meet that fate."
That is how a pro-capital punishment governor -- and Ryan makes it clear that he supports the execution of murderers -- should talk. Convicted killers deserve to die because the worst of all crimes calls for the worst of all punishments. But because the stakes are so grave, it also calls for the most exacting due process. When the state kills a murderer, there must be no doubt about the fairness of the trial or the integrity of the evidence. And if capital murder cases in Chicago are as tainted by police or prosecutorial malfeasance as reports suggest, then it was indeed the responsibility of Illinois's governor to prevent executions from going forward. That is why the law empowers him to grant reprieves.
But because something is rotten in the state of Illinois, it does not follow that there has been a failure of due process elsewhere. On the contrary, death penalty cases tend to be more exhaustively scrutinized and litigated than any other kind of criminal jurisprudence. That is what accounts for the remarkable accuracy -- yes, accuracy -- of the death penalty in the United States.
For decades, death penalty abolitionists have raised the specter of wrongful execution. They have pointed to miscarriages of justice like Anthony Porter's and warned that a state that executes guilty prisoners will sooner or later execute an innocent one. "The danger that innocent people will be executed because of errors in the criminal justice system is getting worse," claims Richard Dieter of the Death Penalty Information Center, a leading abolitionist group.
And yet there is still no documented case -- not one -- of an innocent person being executed in the United States in modern times.
In a famous 1987 study published in the Stanford Law Review, Michael Radelet and Hugo Bedau purported to identify hundreds of "Miscarriages of Justice in Potentially Capital Cases" -- including 23 instances in which innocent people had been executed by the state. To this day, their claim is routinely cited as fact by abolitionists. But when legal scholars reviewed the Radelet-Bedau study, they found that "it consistently presented incomplete and misleading accounts of the evidence" in the 23 cases. Eventually Radelet and Bedau conceded the point. "We agree with our critics that we have not proved these executed defendants to be innocent," they wrote. "We never claimed that we had."
Of course mistakes are possible. Everything human, including the criminal law, is fallible. The reason capital punishment has proven so accurate is not that the judicial system never errs, but that it anticipates errors and keeps them from becoming fatal. A favorite statistic of death penalty critics is that "more than 80" inmates have been released from death row since 1973 -- the implication being that innocent men and women keep coming perilously close to death.
But in fact the critics understate the case. Of the nearly 6,500 murderers sentenced to death since 1973, more than 2,000 have left death row by means other than execution. Thirty-three percent of death penalty verdicts are vacated for one reason or another. A prisoner on death row is far more likely to walk out on his own two feet than be carried out in a box. All of which reflects the extraordinary level of due process that protects the most dangerous criminals in America.
A decent society takes every rational precaution to ensure that capital punishment is meted out only to the guilty. But to get rid of capital punishment altogether -- which is what so many of Governor Ryan's new admirers want -- would be neither decent nor rational. For when murderers aren't killed, more innocent people die. In the debate over the death penalty, those are the unchanging stakes.
Jeff Jacoby is a columnist for The Boston Globe.
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