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Toward 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.

Public enthusiasm 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.

The developments 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 shortly.

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.

More fundamentally, 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.

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