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Gov. Parris N. Glendening took a courageous step when he put a moratorium on executions in Maryland, as Gov. George Ryan did in Illinois in 2000.
Mr. Glendening’s action signals mounting concern about flaws in our death penalty system: the 101st death row inmate has now been exonerated; a Columbia University study has found that from 1973 to 1995, more than two-thirds of death penalty convictions were reversed on appeal based on serious, reversible error; and late last month in New York, U.S. District Judge Jed Rakoff announced that he was seriously considering finding the federal death penalty unconstitutional because so many death row inmates have been found innocent.
The message is clear: In response to the glaring flaws in the administration of capital punishment, the nation should conduct a thorough, nationwide review of the death penalty.
No executions should go forward while an independent, blue-ribbon commission examines the federal and state systems of capital punishment – systems so riddled with errors that for every eight people executed in the modern death penalty era, one person on death row has been found innocent. No one would buy a particular car if the brakes failed in one car for every eight cars that came off the lot, and we should never accept that level of error when people’s lives hang in the balance.
The commission appointed by Governor Ryan has taken a hard look at that state’s death penalty system, which has freed more men from its death row than it has executed since Illinois reinstated the death penalty in 1977. Yet no thorough study of the federal death penalty, or of the death penalty in 37 other states, has been conducted since the Supreme Court first declared capital punishment unconstitutional in the United States in 1972.
Just last week, the 101st exoneration in the United States took place in Pennsylvania, where Thomas Kimbell Jr. spent four years on Pennsylvania’s death row for murders he did not commit. With 101 death row inmates nationwide found innocent – some just days before their execution date – the nation should follow Illinois’ lead by placing a moratorium on executions and conducting a thorough examination of the administration of capital punishment.
After the 13th innocent man was freed from Illinois’ death row more than two years ago, Governor Ryan placed a moratorium on the state’s death penalty and brought together an esteemed panel of prosecutors, defense lawyers, judges and other citizens from both sides of the issue.
That commission concluded that while no system can guarantee that capital punishment won’t take an innocent life in Illinois, the state can institute reforms in its criminal justice system to guard against such a terrible injustice.
The recommendations made by the Illinois commission address the root problems that have resulted in the wrongful conviction of innocent people.
For instance, the commission recommends that the death penalty be barred in certain situations in which a conviction hinges solely on evidence that is inherently less reliable, such as the testimony of a single witness, a jailhouse informant or "snitch," or an uncorroborated accomplice.
The commission also recommends the videotaping of questioning of capital suspects at a police facility to reduce the risk of possible coerced confessions.
The problem of incompetent defense counsel can be addressed by improving the training of lawyers in death penalty cases, the commission writes.
While Illinois, and now Maryland, work to reform their death penalty systems, many other states have done little or nothing to review their own systems of capital punishment, even though their rates for error in capital cases may be significant.
Three-fourths of the states that have conducted executions since 1976 have released at least one innocent person from death row; 22 innocent people have been released from Florida’s death row alone in the modern death penalty era.
A national commission should study whether and how these kinds of serious errors can be avoided in other death penalty states and at the federal level.
We support legislation in the Senate to create such a commission, and to put a moratorium on executions while the commission evaluates whether the operation of the death penalty machinery today is consistent with constitutional principles of fairness, justice, equality and due process.
The harrowing stories of innocent people narrowly averting execution, and the courageous steps by the Maryland and Illinois governors, offer compelling evidence that a national commission and moratorium should go forward.
Russ Feingold is a Democratic senator from Wisconsin and Jon Corzine is a Democratic senator from New Jersey. They are co-sponsors of the proposed National Death Penalty Moratorium Act.
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Back in January, when the Enron scandal threatened to ensnare the Bush Administration, White House press secretary Ari Fleischer bragged to NBC’s Tom Brokaw after a hard day of managing the news. "Did you notice all the Enron stuff that everybody was asking about? Look what made it on the air — the business-scandal side of it."
Fleischer had succeeded in burying the political-scandal side of the story, and it was a remarkable professional achievement in the world of spin. Here was an Administration that was locked in "a carnal embrace" with Enron: President, Vice-President, top economic and political advisers, Secretary of the Army, US Trade Representative — and more. But the political fallout was barely registering.
Now Fleischer’s magic, and President Bush’s teflon coating, may finally be fading. The discovery that there were numerous warning signs leading up to the massacre of September 11, that went unheeded, could mark the beginning of a Great Unraveling.
The Bush Administration and its allies have shamelessly exploited September 11 to get what they want, from mountains of new pork at the Pentagon to Fast Track authority for negotiating new foreign commercial agreements. The latter passed the House by one vote last December, after a threat from House speaker Dennis Hastert: "This Congress will either support our president — who’s fighting a courageous war on terrorism and redefining American world leadership — or it will undercut the president at the worst possible time."
They have been quick to question the patriotism of their opponents, and it has worked. The Democratic leadership was cowed into silence, which gave President Bush very high approval ratings — they remain at 76 percent. Many observers attribute these results to the "War Against Terrorism," but this is exaggerated. A public that hears only praise and no criticism will predictably answer "yes" to pollsters who ask whether the President is doing a good job.
This unfortunate dynamic has encouraged a President who couldn’t get a majority of the popular vote to govern as though he had won an overwhelming mandate from the electorate.
Vice President Dick Cheney has lashed out hard at his critics, calling their actions "thoroughly irresponsible and totally unworthy of national leaders in a time of war."
But it’s not working any more. The Democrats softened their rhetoric, but Senate majority leader Tom Daschle is still demanding that an independent commission be set up to investigate what our government knew and did before September 11.
The Bush Administration has been less than forthright about what was known about possible attacks, and when it became known. For example, National Security Adviser Condoleeza Rice told reporters last week that US intelligence officials were focused on overseas threats in the months prior to September 11. But according to the Washington Post, a secret briefing memo presented to President Bush on August 6 — headlined "Bin Laden Determined to Strike in U.S.," — was focused on attacks within the United States.
Meanwhile, Senator Joseph Lieberman is threatening to subpoena White House officials for information on their contacts with Enron officials. And there is yet another scandal in the making, over the role of the Administration in supporting the military coup last month against the democratically elected President of Venezuela.
This is currently under internal investigation at the State Department and Pentagon, and Senate hearings could follow. Lest anyone think that foreign policy scandals don’t have legs, recall that the Iran-Contra investigation came close to toppling the Reagan presidency in 1987. Ironically, two of the suspects in the Venezuelan coup are re-treads from Iran-Contra: Assistant Secretary of State Otto Reich, and National Security Council official Elliot Abrams, who was convicted of lying to Congress.
The Bush administration may survive all of these challenges and more. But once the teflon is gone, its whole agenda could very well collapse. Most Americans are concerned with bread and butter issues, such as prescription drug costs, health insurance, and education — issues for which this Administration offers them nothing. Cheney’s vision of a war without end, a replacement for the Cold War that will justify any overseas military adventure — Iraq, Somalia, Colombia — appeals to the national security establishment and some private sector beneficiaries. But it won’t attract many voters.