I. Innocence

Some two decades ago, Professor Hugo Adam Bedau and I began to compile a list of all prisoners released from American death rows because of doubts about guilt.[17] That list is now updated by the Death Penalty Information Center in Washington, which uses slightly different criteria: they no longer include cases in which a person is freed from death row following a forced guilty plea to the homicide in exchange for time served. In any event, that list now includes 98 cases. With 21 of the 98 cases, Florida by far leads the U.S. in the number of innocent people sentenced to death. Illinois, with 13 cases, is in second place, and there the 13 cases were sufficient for the governor to call a moratorium on executions until their whole death sentencing system, from top to bottom, could be more closely examined.

Table 5 lists the Florida cases. Note that in addition to the 21 cases included by the Death Penalty Information Center, I also include the Florida cases of Sunny Jacobs and Joe Spaziano. And, if Governor Bush is sincerely interested in testing his belief that everyone executed in Florida was unquestionably guilty, I urge him to look into the case of Jesse Tafero, whose evidence of innocence is even stronger than that of Medina and Demps.

J. The Bigger Picture

At the same time when the executioner in Florida is falling into disrepute, I think it is important to recognize that this fall from grace is happening elsewhere as well. When one steps back and takes a long-term historical perspective, it is clear that the death penalty has been in a gradual, worldwide decline for almost 200 years. In 1800 in England there were over 200 capital offenses, many of which carried mandatory death sentences. Until 75 years ago public hangings in the U.S. were widespread, and little concern was voiced when executions were botched and the condemned inmate suffered a long and painful death. Only in the past three decades have appeals in state and federal courts become common in capital cases.

The trend toward universal abolition of the death penalty has continued during the past decade at an unprecedented speed. According to Amnesty International Report, 2001, between 1985 and the end of 2000, more than 40 countries abolished the death penalty. By the end of the twentieth century, some 108 countries had abolished the death penalty either totally or in practice. On May 28, 2001, Chile added itself to this list, and on June 7 voters in Ireland, by a 62-37 margin, passed a constitutional amendment prohibiting the death penalty. In April the U.N. Commission on Human Rights in Geneva renewed its call for a worldwide moratorium on executions, joining a similar call made last December by Secretary General Kofi Annan. On June 25, 2001, the Council of Europe called on the United States and Japan to abolish the death penalty, stating that the formal "observer" status given to these two countries in the Council of Europe's Parliamentary Association would be revoked if there was no significant progress moving toward abolition by the end of next year. Today, approximately 88 percent of all known executions are carried out by only four countries -- China, Iran, Saudi Arabia, and the United States. So, with the exception of a small handful of human rights renegades, progress toward abolition has been widespread.

Even in the U.S., there are encouraging signs for those who oppose the death penalty. In the past two years, calls for moratoria in Nebraska, Illinois, and New Hampshire have met with some success. As I mentioned earlier, public support for the death penalty appears to have peaked, and has now dropped to a point where, given life without parole, friends and foes of the death penalty appear in roughly equal numbers.

More subtle moves toward abolition can also be discerned. Not the least of these involves changes in death penalty rhetoric. Consider how the death penalty was argued in 1976, when the Supreme Court reversed course and gave its stamp of approval to several new death penalty statutes, with the way that it is argued today.

In 1976, public opinion polls revealed that the main reason why Americans supported the death penalty was deterrence. Since then, in part because of life-without-parole alternatives, fewer and fewer Americans (and even politicians) cling to this archaic belief. Similarly, the friends of the executioner in 1976 were constantly arguing that the death penalty would save taxpayers money, or that God was pro-death penalty, or that the possibility of racial bias or the execution of the innocent was, if anything, minuscule. Today, supporters of a deterrence hypothesis ("Respect life, or I will kill you") are few and far between, and death penalty proponents and abolitionists agree that it is costly, applied unequally, and that once in awhile, innocent people will be executed.

Today the main argument voiced in support of the death penalty is pure retribution. Even retributive arguments, however, may have peaked. In the not-so-recent past, politicians seeking office could all but say, "I'll kill for this job," and "Vote for me and I will kill more than my opponent." In contrast, by 2000, candidate George Bush could not, and did not, use his extraordinary love for the executioner as a reason to vote for him (too bad that Al Gore did not have the wisdom or courage to use the Bush record against him). Similarly, the unbridled pro-death rhetoric we saw a decade ago in gubernatorial elections has all but disappeared. To be sure, few politicians are running on anti-death penalty platforms, but the decline in pro-death penalty oratory is unquestionably a step in the right direction.

How much of a punishment or a reward anyone "deserves" is virtually impossible to reliably calculate, and just because a person "deserves" something, it does not mean s/he will get it. For criminals, the question of just deserts is basically a moral question. With more and more religious organizations asking their members to give renewed thought to the morality of the death penalty, those who oppose the death penalty will have an advantage in future conversations about "just deserts." The question is gradually shifting from "who deserves to die," to "who deserves to kill."

In the next few years, I believe, more and more political conservatives will be joining the calls for moratoria. They will join such conservatives as George Will, Pat Robertson, Oliver North, and the Pope (who has been called many things, but never "a liberal." Using their existing support for greater religious and moral authority, fiscal austerity, and healthy skepticism for government-run programs (e.g., welfare and the post office), more conservative Americans may very well find that they have much in common with more traditional anti-death penalty groups. If that indeed happens, the death of the death penalty could soon take place.

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