The state of the debate

As justice, the death penalty is absolute and final. As politics, it is anything but.

Conventional wisdom has the anti-capital-punishment forces gaining momentum in recent years. Moratorium movements have sprung up around the country, inspired by former Illinois Governor George Ryan, who first put a halt to new executions and then, in 2000, commuted all existing death sentences. A conservative U.S. Supreme Court has twice limited the reach of capital punishment, keeping mentally retarded inmates and juvenile offenders out of the death chambers. Public support for the death penalty has dropped, although it still represents a solid majority.

Anyone who thinks this is the road to abolition should re-check his or her map.

Most of the momentum has come as the result of judicial errors coming to light. Ryan found that more death row inmates in his state had been cleared than executed since 1977. Advances in forensics, particularly in DNA testing, have made it more feasible to establish actual innocence, whereas before most death-row appeals had focused on fair-trial issues.

In the long run, however, this may be what strengthens the case for capital punishment. The debate has veered away from more esoteric issues of morality and effectiveness and focused on one question: Are we killing innocent people?

There undoubtedly will be an extended period of bickering and dickering about how to reduce that likelihood, and it will create a more just system. Inmates will be given more access to DNA testing, the poor will be given more access to competent counsel, and the jury-selection process will be fine-tuned.

If enough people believe that the safeguards against executing the innocent are adequate, the deeper questions of capital punishment aren’t likely to get much of a hearing.

In the meantime, the current state of flux demonstrates how many cross-currents are at work in this debate.

Fear of terrorism, specifically the horrifying images of 9/11, generally works to the advantage of capital-punishment advocates in the arena of public opinion. It’s enough to have Zacarias Moussaoui, a man who was in jail at the time of the 9/11 attack, facing execution for his tenuous link to the plot.

In practice, however, the death penalty may actually inhibit the country’s ability to get its hands on suspected terrorists, since many countries won’t extradite suspects who could face execution. Less than three months after 9/11, the Associated Press reported that Spain refused to turn over eight suspected terrorists because they could face execution in the United States. The story also stated that Germany, England and Italy held suspected terrorists but had signed a treaty banning extradition if capital punishment was a possibility.

While many people, including conservatives, are open to the concept of a moratorium because of guilt-or-innocence issues, there remains a vigorous movement to reduce appeals and quicken the process. Two of the most oft-cited rationales for the death penalty—deterrence and closure for victims’ families—are undermined when the execution becomes a distant, almost theoretical event.

As for electoral politics, the issue defies labels. Voters in Massachusetts, one of the most liberal states in the country, elected Mitt Romney governor despite his vow to reinstate capital punishment there. At the same time, in solid-red Virginia, Tim Kaine won the governorship as an unapologetic opponent of capital punishment. The issue was used against him, with vivid ads featuring relatives of murder victims, to no effect.

It’s likely to get even stranger. If, as is highly possible, Hillary Rodham Clinton is the Democratic presidential nominee in 2008, on this issue she will be running to the right of conservative columnist George Will, who came out squarely against capital punishment in an October 2003 column.

Maybe it’s the certainty of the death penalty that creates so much uncertainty around it.