Making Sure Death Is Fair

Growing concerns about making sure the innocent aren’t sentenced to death has caused more Americans to support a moratorium on the death penalty.

Even though most Americans support the death penalty, there’s rising concern about how the state’s ultimate punishment is levied. A new poll by the Death Penalty Information Center (DPIC), a Washington, D.C.-based nonprofit organization that provides analysis on capital punishment, found that 58 percent want a national moratorium on executions. In 2006, there were fewer executions than in any year since the death penalty was reinstated over 30 years ago. NEWSWEEK’s Kurt Soller spoke with the director of the center, Richard Dieter, about the current state of capital punishment in America.

Excerpts:

NEWSWEEK: Fifty-eight percent of those surveyed want a moratorium in place. How surprising is that?
Richard Dieter: It is counterintuitive, given that the majority of people support the death penalty nationally [65 percent according to a 2006 Gallup poll]. But even in the South, where most executions occur, there is a willingness to stop executions. If you’re concerned about killing innocent people, you want something done. [According to DPIC research], 62 percent support a death penalty [as long as it is administered fairly and the innocent are adequately protected]. But people have concerns: innocence. They don’t believe it’s a deterrent. Unfairness.

What kind of unfairness?
There’s common agreement about who’s on death row: people who can’t afford their own lawyers, and a high percentage of minorities. The end result is dissatisfaction. Over two thirds [of the sample] felt these problems are not going to be eliminated through slight improvements. There’s distancing and skepticism—not yet total opposition [to the death penalty], but certainly concerns.

Support is waning and death sentences are decreasing. Is this a chicken-or-egg issue?
It’s being used less because of [the public's] concerns. Executions were rising throughout the 1990s up until 1999. There was every reason to believe, with 300 death sentences a year, executions would increase. The number of states that use the death penalty expanded. The federal death penalty expanded. But something happened around the late ’90s that brought numbers down. It was repeated revelations about mistakes—DNA cases about people walking off death row and into the arms of their families and lawyers. From almost being executed to free on the street—that story fills the John Grisham books and the TV shows and the movies. It’s not just actual cases that permeated the public’s consciousness. The death penalty became a little risky.

Wasn’t execution always risky?
There used to be a chance of executing an innocent person. But it was theoretical. Appeals were a year long—if that—and you were executed quickly. There was little science to turn something around. We’re in a different era now. We know 124 cases where people have been freed from death row. That’s enough to cause skepticism, and from 1999 on, you have a decline [in executions].

Is life without parole replacing the death penalty as the go-to option for murderers?
All states that have the death penalty have life without parole, with the exception of New Mexico. Texas [the state with the highest number of executions] was the most recent to adopt that law. Juries now get “death or life without parole?” It used to be “life or death? And don’t ask us what life means.”

As time passes, what’s the generational element?
Students have debated and written about this issue. They know more about it. The newer generation is more skeptical about the necessity of the death penalty given its problems. It’s not that they’re more moral. It’s a factual problem.

But what if they end up on a jury? The study shows many people feel they’d be disqualified due to personal opposition.
They’re right. A recent Supreme Court decision [Uttecht v. Brown] broadened the chance to exclude people who have doubts about the death penalty. That’s a good ruling for the prosecution. But the more people excluded, the less democratic it is.

Is there a threat that the only people serving on juries are those who support the death penalty?
That’s where we are. Our poll indicates that it’s not just 1 or 2 percent who would refuse, but upward of 40 percent feel they would be excluded. It’s not a majority, but you’re supposed to be having a jury of your peers. It turns out that women, blacks and Catholics are more likely to be excluded from the jury. If the death penalty is not representative of minorities, then you have a democracy problem that makes it invalid. The more people that get excluded, the worse this problem gets. It’s a ticking time bomb.

The presidential candidates aren’t talking about it. What are the politics behind this?
Those who support the death penalty no longer can without being asked how many innocent people it would be acceptable to execute to uphold the penalty. Those kinds of questions don’t help a candidate. The anti-death-penalty candidate doesn’t want to bring it up. It’s not a winning issue. And the pro-death-penalty candidate now realizes it’s a multifaceted issue. It’s not a clear winner as it used to be when [Michael] Dukakis was faced with it.

Most of the candidates support the death penalty, at least in principal, on both sides. I don’t know that it is going to be an issue. It’s going to be a state change. You’re not going to see a Congress resolution or a Supreme Court decision or a president campaigning to get rid of it.

So how far are we from that national moratorium?
We’re still a ways away, even though the polls suggest it. It won’t happen nationally. Two thirds of this year’s executions have been in Texas [15 out of 22]. That’s not a national affirmation of the death penalty. Things are going to change on a state level. With juveniles, there were enough states that said, “We don’t want to be part of this anymore.” So the Supreme Court said, “It seems to be unusual that we would execute juveniles. There seems to be a consensus against it, so it’s banned. It has become cruel and unusual.” The public has to warm up to the idea [of banning the death penalty for adults, too]. And that’s what is starting to happen.