Deadly Compromise.

• Author: GREEN, JOSHUA
• Position: Death penalty

Liberals and conservatives are both wrong about the death penalty

IN THE LONG-RUNNING BATTLE OVER America's death penalty, two trends have emerged to stoke passions on opposing sides of the debate. An alarming number of men--82--have been freed from death row, or about one for every seven executed. At the same time, the rate of executions has slowed to a trickle as death row inmates languish on average for more than a decade before their sentence is carried out. Two recent examples bear out the problems in our current capital justice system.

In 1978, Robert Alton Harris, a 26-year-old paroled murderer, kidnapped two California teenagers in the parking lot of a fast-food restaurant. He drove to a remote canyon where he killed the two boys, then finished the hamburgers they'd been eating and drove off. Harris was later caught robbing a bank. He confessed to the murders and was sentenced to death in 1979. Yet he managed to delay his execution for 13 years by repeatedly manipulating the appeals system. Harris and his lawyers challenged the quality of his psychiatric evaluation, claimed California's gas chamber was unconstitutional, and argued that the death penalty discriminated against younger killers, males, and those who killed whites. Each of these claims stalled his execution. In a flurry of last-minute appeals, the Supreme Court overturned four separate stays on the night of Harris' execution before it took the unprecedented step of forbidding lower courts to issue further stays. By the time he was finally put to death in 1992, Harris had managed to get more than 20 appeals.

Like Harris, Aaron Patterson's case centered on a murder confession. He was subsequently sentenced to death for the 1986 stabbing deaths of an elderly Chicago couple. But Patterson is one of Illinois' "Death Row 10," a group facing execution who claim their confessions were beaten out of them by a notorious Chicago police lieutenant since fired for abuse and torture. No physical evidence connects Patterson to the murders. The knife was never found. A fingerprint at the scene--not a match--has inexplicably disappeared. The lone witness against him, a teenager who claims police coerced her testimony, has tearfully recanted.

While Harris is a metaphor for the conservative case against the current capital justice system, Patterson's case has been seized upon by abolitionists. Both are justified in their outrage. More than 20 years after its reinstatement, the death penalty is an unwieldy and ineffective compromise between the roughly 70 percent of Americans who favor capital punishment and the minority who fiercely oppose it. The present system is, quite literally, the worst of both worlds. While an ideological battle has been waged in court, a bottleneck has developed in the nation's prisons. Currently, 3,565 inmates sit on death row, and new arrivals average 300 annually. Yet despite rising numbers of death sentences, executions have never topped 100 in a single year. Everyone is being sentenced to death and no one is dying.

Death Born Again

In the landmark 1972 case of Furman vs. Georgia, the Supreme Court struck down the death penalty on four grounds: it was imposed arbitrarily; used unfairly against minorities and the poor; its infrequent use made it an ineffective deterrent; and lastly, state-sanctioned killing was no longer acceptable behavior. The decision resulted in tremendous uncertainty. Each justice filed a separate opinion, an unprecedented move in 20th century jurisprudence, yielding the longest written decision in Supreme Court history. The length is indicative of the decision's complicated rationale. While the case for abolition earned the five votes necessary, the motivation for each vote varied. This uncertainty left the door open for states to write new death penalty laws that might pass constitutional muster.

Abolition was never very popular. Polls taken in March 1972, shortly before Furman was decided, showed a 50 percent approval rating for capital punishment; that number jumped to 57 percent by November. Within the year, 19 state legislatures passed retooled death penalty statutes they hoped would meet the vague standard of constitutionality hinted at in Furman. By the time the Court allowed the modern death penalty by upholding Gregg vs. Georgia in 1976, 35 states had passed new death penalty laws. They have been in dispute ever since, and the result is today's beleaguered system.

Shortly after Gregg, the court acceded to death penalty opponents by outlawing mandatory death sentences and instituting complex safeguards. This gave rise to a problem that still hampers the courts: Unable to abolish capital punishment in the legislature, defense lawyers have sought to institute a de facto halt to executions by stalling cases in court. The more savvy, like Harris' lawyers, quickly mastered the art of "sandbagging," or using delay tactics to stop an execution. By filing spurious last-minute appeals and repeatedly seeking reversals on obscure technical grounds, activist lawyers (and some judges) could bring the system to its knees. Angered by this end run around the law, conservatives have limited the appeals process at the state and federal levels and expanded the scope of crimes punishable by death. The unfortunate result, as federal...