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What's behind growing opposition to the death penalty?
America's execution machine exposed

July 20, 2001 | Page 5

IN EARLY July, Supreme Court Justice Sandra Day O'Connor publicly criticized the U.S. execution machine. She was the latest in a series of mainstream politicians and public figures--some of whom, like O'Connor, have championed capital punishment for years--to admit that the death penalty system is broken.

Socialist Worker looks at the growing questioning of America's execution machine.

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THE DEATH penalty is more unpopular today than at any time in the two-and-a-half decades since executions were restarted in the U.S. That much is clear from opinion polls--and the growing number of reform proposals being considered by lawmakers at both the state and national levels.

But it was still surprising to hear it from the horse's mouth.

"If statistics are any indication," Sandra Day O'Connor declared at the beginning of July, "the system may well be allowing some innocent defendants to be executed."

This was an incredible statement.

O'Connor has been a staunch supporter of the death penalty throughout her two decades as a Supreme Court justice. But speaking to a women lawyers' group in Minneapolis July 3, she pointed to statistics that show that poor defendants who get a court-appointed attorney--many of whom are inexperienced, if not downright incompetent--are more likely to get the death penalty.

"Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used," O'Connor said.

O'Connor's admission came 25 years to the day after a Supreme Court decision that cleared the way for executions to begin again after a four-year moratorium. Since then, the U.S. has steadily increased the speed of its killing machine.

According to a recent study by Amnesty International, in 1999, the U.S. ran fifth in the world in the number of executions–behind China, Iran, Saudi Arabia and the Republic of Congo. Last year, the U.S. jumped to second place, behind only China.

And even China, unlike the U.S., has barred the execution of juvenile offenders and the mentally retarded. In allowing the mentally retarded to be put to death, the U.S. is in the company of one other country in the world--Uzbekistan.

America's stepped-up use of the death penalty haunted George W. Bush on his recent trip to Europe. Protesters greeted the Texecutioner at every stop of his tour to speak out against resumption of the federal death penalty with the execution of Timothy McVeigh.

Bush's defenders claim that the White House was only following "the will of the people." But the public support for capital punishment that pro-death penalty politicians relied on a few years ago is eroding.

Recent polls show that 40 percent of people think that the death penalty is applied unfairly--and more than half want executions halted while a commission studies the fairness of the system. An ABC News poll found that support for the death penalty drops below 50 percent when the alternative sentence of life without parole is mentioned. Now politicians, from liberal to conservative, are considering reforms.

Sixteen states--including, most recently, Jeb Bush's Florida--have passed bans on the execution of the mentally retarded. And in Washington, D.C., Sen. Patrick Leahy's (D-Vt.) Innocence Protection Act--which would give death row prisoners the right to DNA testing, establish standards for defense lawyers in capital cases and put the federal government on record as opposed to the execution of juvenile offenders and the mentally retarded--stands a reasonable chance of being passed by Congress.

Just a few years ago, such proposals would have seemed like pipe dreams. But years of organizing by anti-death penalty activists has started to have a big effect. Death penalty opponents have exposed the many injustices of the death penalty–and thrown supporters of capital punishment on the defensive.

Why did O'Connor speak up?

FEW PEOPLE would have seemed less likely to speak out against the injustices of the death penalty than Sandra Day O'Connor. Since her appointment by Ronald Reagan in 1981, O'Connor has been part of a conservative majority of Supreme Court justices whose decisions have helped speed up the machinery of death.

In 1989, O'Connor wrote the majority opinion in Penry v. Lynbaugh, which declared that executing the mentally retarded wasn't a violation of the Constitution--an issue that the Supreme Court will take up again this coming fall.

And she authored one of the Supreme Court's most controversial opinions in a death penalty case--denying the 1991 appeal of Roger Keith Coleman because his lawyer missed a filing deadline by three days. O'Connor's opinion essentially argued that state laws to limit death row appeals were more important than the rights of prisoners to offer new evidence of their innocence.

So O'Connor is hardly a closet liberal. If she's publicly criticizing aspects of the death penalty system today, it's because the questioning of the death penalty has spread so far.

The Supreme Court is supposed to be immune from public pressure. But it isn't. As on other issues--such as abortion or civil rights--justices have taken very different positions on the same issues, depending on the political climate.

When a conservative like O'Connor criticizes the death penalty--and when a Supreme Court packed with Republican appointees decides to take up important death penalty cases starting next fall--it's a testament to the work of anti-death penalty activists in stepping up the pressure.

"We put the system under a light"

STANLEY HOWARD is a death row prisoner in Illinois, where Republican Gov. George Ryan last year declared a moratorium on executions. Stanley is a member of the Death Row 10, a group of inmates who were sent to death row mainly because of confessions tortured out of them by Chicago police. MARLENE MARTIN is the national director of the Campaign to End the Death Penalty.

Stanley and Marlene talked to Socialist Worker about how public pressure has transformed the issue of the death penalty.

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WHAT'S BEHIND the growing questioning of the death penalty?

Stanley: I'm quite sure that Sandra Day O'Connor is looking at what's going on with the controversy around the death penalty. And the other judges, they also see the same thing.

I think it's because of the movement that's been going on around the death penalty and the agitation that's been taking place.

The fact that Bush did run for president gave us the chance to put the death penalty under a spotlight. And the best way to deal with a problem is to bring it to the light of day. As long as we have him--the idiot--in office, we'll be able to attack him as such.

These politicians and elected officials, even the judges, they watch the opinion polls, like everyone else. So public opinion does mean a lot.

Marlene: Ever since we won the moratorium in Illinois, there's been national tension around this issue. All the unfairness of the death penalty system--its racism, wrongful convictions, sending people to death because of incompetent attorneys--has gotten attention in a way that the issue never had before.

Politicians can't ignore that, and neither can the courts. These are the people who are supposed to uphold fairness and administer justice in this country. So there's a crisis when their system is exposed as having big flaws.

And that's exactly what's happened with the death penalty. Ignoring this would lose credibility for themselves and the system they uphold.

WHAT'S BEEN the impact of these shifts?

Stanley: A little while ago, when they were executing people, guys were feeling like their lives were in jeopardy. The death penalty still exists, and the guys understand that their lives are still in jeopardy, but they know that public opinion has swung and the death penalty has begun to get a lot of attention.

So there's a lot more optimism.

I don't care what Governor Ryan or his commission says about fixing the death penalty. There's nothing in the world that they can do to stop innocent guys from being executed as long as you have a broken system. As long as you have these overzealous prosecutors, we're going to continue to have a system that's filled with errors and flaws.

Marlene: Activism has focused attention on the death penalty and led to a lot of legislative proposals for reform. There's countless reforms and moratorium initiatives being put forward today, and these initiatives are gaining in popularity.

But we have to remember that no matter how much you tinker with the system, it can never be fixed. We have enough studies, we have enough evidence, and all of it shows conclusively that the death penalty has always been used against the most disenfranchised in society, especially against minorities.

This is an injustice that none of us should tolerate--no matter what. That's why the Campaign's slogan is Moratorium Now, Abolition Next.

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