It wouldn’t be the first time. In the early ’80s, when states began abandoning the electric chair for the more humane method of lethal injection, some anti-death-penalty activists cheered. But, by sanitizing capital punishment, states robbed the abolitionists of one of their strongest arguments: the practice’s barbarity. Henry Schwarzchild, the late dean of the American anti-death-penalty movement and a fervent opponent of lethal injection, used to quote the critic Alexander Woollcott: “The worst sin of all is to do well that which shouldn’t be done at all.” Perhaps not surprisingly, the first state to use lethal injection–Texas–now accounts for more than one-third of all the executions in America.
Something similar happened during the previous decade as well, when opponents of the death penalty, by challenging its constitutional basis, achieved a nationwide moratorium on capital punishment, beginning in 1967. In 1972, with its ruling in Furman v. Georgia, the Supreme Court lent its imprimatur to the halt in executions, declaring that the arbitrary and discriminatory implementation of the death penalty constituted “cruel and unusual punishment.” University of Pennsylvania Law School Professor Anthony Amsterdam, a leading death- penalty abolitionist who argued the case before the Court, announced that it was “almost inconceivable” that executions could resume. But they did. The Court hadn’t declared the entire capital punishment system unconstitutional–only a number of problematic statutes. So Georgia tinkered with its death-penalty laws, addressing the racial bias that concerned the Court. In 1976, in Gregg v. Georgia, the Court ended the moratorium and allowed capital punishment in the state to resume. Thirty-four other states quickly incorporated variations of Georgia’s reforms into their own statutes. And, while it took until the early ’90s for the number of executions in the country to return to their pre-Furman levels, public approval for the death penalty actually increased after the moratorium and the reforms it prompted, rising from around 50 percent in 1972 to more than 70 percent in the early ’80s.
Anti-death-penalty activists claim that much has changed since Furman and Gregg, and they too offer public-opinion polls as evidence: since 1994, polls show that support for capital punishment has steadily declined. Activists and academics attribute this decline largely to the perception that innocent men and women have been sentenced to death. According to Gallup surveys, the percentage of Americans who believe that states kill innocent people has risen nearly ten points–to more than 90 percent of all questioned–over the last five years.
These polls have led the anti-death-penalty movement in recent years to shift its focus largely from moral arguments to procedural ones– primarily the fallibility of the capital punishment system. New institutions, like the Death Penalty Information Center–which pointedly does not take a public position on the death penalty itself– have sprouted to help publicize the fact that, since Gregg, some 87 death-row inmates have been exonerated and freed. In 1998, Northwestern University held the first-ever National Conference on Wrongful Convictions and the Death Penalty, which brought together 30 of those former prisoners. And, in February, Senator Patrick Leahy introduced the Innocence Protection Act, which seeks to make DNA testing easier and enhance the legal representation afforded to death-row inmates. “People of good conscience can and will disagree on the morality of the death penalty,” said the senator, but “we should all be able to agree that a system that may sentence one innocent person to death for every seven it executes has no place in a civilized society.”
But, if Leahy’s bill passes–and, with bipartisan support, its prospects look good–those people of good conscience who oppose the death penalty on principle might find themselves in an awkward position. For if the potential for wrongful execution stokes public outrage, the potential for a nearperfect DNA match helps mollify it.
This paradox will be on full display in Illinois, where, though 66 percent of residents surveyed approve of Ryan’s decision to impose the moratorium, nearly 60 percent still support the death penalty. Among them is Ryan himself, a Republican who, while canonized by death- penalty opponents–The Washington Post hailed him as a “newly installed hero in the progressive pantheon”–still maintains that capital punishment is an appropriate response to the most violent crimes. Similarly, many of Ryan’s Republican allies in the state legislature who support the moratorium seem disinclined to back abolition. They reiterated those views just last week, when a law to prevent the execution of the mentally retarded, after passing the Illinois House, died in the Republican-controlled Senate before leaving committee.
Indeed, of the 14 people Ryan appointed to a ballyhooed commission to study the state’s death penalty and offer recommendations to the legislature, eleven support capital punishment. Even the few commission members who oppose it concede that their objective is reform, not abolition. According to former Senator Paul Simon, one of the commission members who oppose the death penalty, the most likely result of the commission’s deliberations will be to recommend safeguards to ensure adequate counsel. “If I want to speak against the death penalty,” says Simon, “I don’t need the commission.”
That’s exactly why a number of death-penalty proponents support Ryan’s moratorium. To them, his move represents a sort of purge that will rid the death-penalty debate of a few embarrassing statistics. Says Michael Rushford, president of the Criminal Justice Legal Foundation, an organization that seeks to “restor[e] a balance between the rights of crime victims and the criminally accused,” DNA testing and other suggested reforms “really limit the complaints [of death-penalty activists] to isolated incidents. The result of this effort will make errors more isolated, there will be less grist for opponents to grind, and the public will see the executions of clearly guilty murderers and feel good about that.”
Still, death-penalty abolitionists are hitching their wagons to the moratorium movement. Last October, at the International Moratorium Conference at Columbia University, Anthony Amsterdam, now at New York University Law School, admitted that the “frightening word `forever’ … imposes a nearly unbearable burden” on abolitionists. The moratorium movement, Amsterdam suggested, lets them shake off that burden while ultimately achieving the same end. Since moratoriums contain “the normative power of the actual,” Amsterdam argued, they will demonstrate to those who support the death penalty that the country can survive without it. Other anti-death-penalty activists hope that the reforms necessary to ensure that no innocent man or woman is executed will prove so expensive that they will force Americans to consider less costly punitive alternatives, such as life in prison without parole.
But, even as they publicly embrace the moratorium movement, some anti- death-penalty activists privately concede that they’re wary of it–and the reforms it will likely bring. As Charles Hoffman, Illinois assistant state appellate defender and a death-penalty opponent, worries, “If you take the death penalty, and you put lipstick and rouge on it, and you trot it out in a big fancy dress, it might look more acceptable to people.” In other words, The New York Times Magazine might be right. This could be a tipping point. In the other direction.