Death Penaly Reform
New York Times Editorial
October 13, 2003
Even as Congress
was advancing long-delayed death penalty reforms last week, the
Supreme Court was moving in the opposite direction, lending tacit
approval to modern-day barbarism. The justices declined to review
a lower court ruling allowing a deranged prisoner to be forcibly
medicated to make him sane enough to be executed.
for the death penalty has been muted in recent years as the country
learns more about how it is actually applied. And those stories
continue surfacing, one more distressing than the next. A recent
article in The Times pointed to a growing debate among legal and
medical experts about the supposedly humane use of lethal injection
to kill condemned prisoners, noting that Tennessee recently outlawed
use of one of the chemicals for pet euthanasia.
in Congress reflect the positive side of all these disclosures
— a desire even among supporters of the death penalty to
eliminate some of the most outrageous aspects of how it is applied.
With crucial help from the House Judiciary Committee chairman,
F. James Sensenbrenner Jr., and Representatives Ray LaHood and
Bill Delahunt, a coalition of Congressional Republicans and Democrats
has come up with a compromise to combat wrongful convictions in
death penalty cases. The new legislation combines President Bush's
initiative to reduce the backlog of biological evidence awaiting
testing with a pale version of Senator Patrick Leahy's Innocence
Protection Act, a measure that has languished year after year.
The hybrid includes provisions to require the preservation of
physical evidence in federal criminal cases, expand the availability
of post-conviction DNA testing and help nudge states to raise
the abysmal caliber of legal representation in capital cases.
The bill has cleared an important hurdle, passing the House Judiciary
Committee by a 28-to-1 vote. A vote by the full House is expected
No one should be
deluded into thinking the measure is a cure-all, however. In the
redrafting, for one thing, penalties for noncompliance with lawyering
standards were replaced with a voluntary system of large financial
incentives to goad states to bind themselves to federal guidelines.
The effectiveness of the incentives depends largely on whether
the bill is fully financed — a big if — and even then
it is possible some states with more primitive death penalty practices
may decline to participate.
plenty of factors that contribute to the risk of executing the
innocent were left unaddressed, like coerced confessions and the
faulty recollection of eyewitnesses. Nor would the bill stop states
from forcibly medicating deranged prisoners to get around the
Eighth Amendment ban on executing the mentally incompetent —
the serious constitutional issue sidestepped by the justices.
The truth is there
is no cure-all for the ethical, moral and practical problems capital
punishment raises — that is, short of a Supreme Court ruling
finally abolishing the inherently cruel and unusual "machinery
of death," as Justice Harry Blackmun termed it. It could
be a long wait. In the meantime, the consensus reform bill now
chugging through Congress is surely preferable to the alternative,
which is for Congress to do nothing.