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Where do you draw the line? 

A death-penalty study is alive, but the moratorium bill is dead.

"Where do you draw the line?" It was exactly the right question to ask about the death penalty, even if the person asking it, state Rep. Rick Eddins, a Wake County Republican, was expressing his concern for the families of murder victims, not because he's in doubt about executing too many--or the wrong--death-row convicts. For opponents of capital punishment, the answer to Eddins' question is straight up: We draw it short of killing and in favor of allowing even a murderer to live out his mortal existence in prison.

In the General Assembly, however, a majority of the members--like most people in the state--favor the death penalty in some cases. But which cases? The ones in which we are absolutely rock-solid sure who did it? Where we're certain that the killer was not mentally ill? Or retarded? Or addicted? Where do you draw those lines?

What about the cases--and it's a lot of them, as every regular Indy reader knows--where the killer's upbringing was so negligent and abusive that literally the die was cast in his childhood? And when I say a lot of the cases, I mean the ones that do result in a death sentence, because the vast majority of murders in our state do not.

In fact, the best predictor of whether a killer will be sentenced to death, some studies have shown, isn't how heinous the crime or even how calculated it was. It's how good your lawyers are. (It also helps if you're not black and didn't kill someone who's white.) Good lawyers will help the jurors to see that there could be some small, niggling doubt about your guilt, even after they've convicted you; or, if you've confessed, they help jurors see a reason to hope for your humanity, should they spare your life.

Actually, good lawyers can often convince a prosecutor that if she goes to trial looking for a death sentence, she probably won't get it--therefore (and to save the taxpayers money), she should accept the defendant's guilty plea in exchange for a life term.

Perhaps the best evidence that this is true is the steadily dropping rate of capital convictions since the General Assembly, in response to episodes of alcoholic lawyers sleeping through murder trials, moved to assure that every murder suspect would have competent counsel. A decade ago, juries sent at least a dozen convicts to death row every year, and as many as 21 in 1993; the last three years, the numbers are four, six and five.

That's an average of five death-row convicts out of more than 400 murders a year in North Carolina as reported by the FBI crime statistics.

Eventually, I thought to myself, listening to Eddins and the other members of the House Judiciary Committee debate what's left of the death-penalty moratorium bill on Tuesday, maybe we'll draw the line where Israel draws it. The Israelis retain capital punishment on the books. But for all the violence they've experienced in their half-century as a nation, they've used it only once--in 1962--when they hanged Adolf Eichmann. Never since.

Ironically, the falling number of capital convictions helped undermine the logic of the moratorium bill, HB 529. The same measure passed the Senate last term, and at the beginning of this term it seemed that a growing number of legislators in the House who support capital punishment were nonetheless worried that the state might execute an innocent person by mistake, thus humiliating them. Together with death-penalty opponents, it seemed, they'd be enough to push the bill through to Gov. Mike Easley, who opposed it but had never said flatly that he'd veto it.

But ultimately, there weren't enough. Solid Republican opposition formed around the idea that "the system"--if previously flawed--now "works" thanks to better trial counsel, a new law barring death sentences for person with mental retardation (I.Q. less than 70), another new law that requires the state to show all the evidence it's collected to the defendant, and the recent U.S. Supreme Court ruling against executing adolescent murderers--bitterly opposed on the right.

Republicans and conservative Democrats alike want some murderers convicted, and as Eddins' question indicated, they were starting to be more worried about having too few killed than about the possible innocent. So they killed the moratorium bill instead.

Well, as George Reed, executive director of the N.C. Council of Churches, said, "Around here, when you can't get the whole loaf of bread, you try to get as many slices as you can."

So the original moratorium bill, which called for a two-year pause in executions pending the results of a legislative study of how the death penalty is administered in our state, was amended Tuesday in a House committee. Now it calls for the study, but not the pause. In place of the moratorium, Superior Court judges are empowered to issue a stay and halt a pending execution if the case raises any of the issues--possible innocence, racial bias, inadequate counsel, or "disproportionality" (other similar murders resulted in lesser sentences)--under study.

This is a fig leaf, however. Judges can already issue stays, and they're routinely overruled by the state Supreme Court--and as the bill's sponsor, House Majority Leader Joe Hackney, an Orange County Democrat, acknowledged, there's nothing in the amended measure that would prevent the state's highest court from continuing to overrule them.

So the study's been saved and will likely occur, but executions will continue in the meantime, meaning that the onus is still on capital punishment's opponents to show what's wrong with it, not on its proponents to show why it's right.

Where do you draw the line? Hackney's answer was that you draw it so that the imperfections of the court system are under constant scrutiny and repair, and it's never too late to avoid a mistake. "There's a saying in the courts that death is different, and it is," Hackney said.

But letting executions go forward means, almost inevitably, that it will be too late some day, and we will be found to have killed someone who was innocent. Missouri is facing that prospect today with the disclosure in recent weeks that Larry Griffin, who was executed a decade ago for a drive-by killing, may well have been the wrong man. Here, we convicted Alan Gell for a 1995 murder in Bertie County and sent him to death row, only to discover nine years later that prosecutors had withheld crucial evidence pointing to his innocence. Retried a year ago, he was acquitted. Does the system work?

Charles Munsey, sent to death row for a 1996 murder in Wilkes County on the testimony of a jailhouse snitch, was given a new trial, after which someone else confessed, and the prosecutor--who'd withheld crucial evidence--hanged himself. But Munsey had started smoking in prison, and he died of lung cancer days before he would have been released. Does the system work?

Try to draw up a law that allows you to be certain of guilt before an execution, beyond not just a reasonable doubt but any doubt, without either eliminating every case--the conservatives' fear--or else opening yourself up to the possibility that the eyewitnesses you trusted so much were wrong, or lying; the prosecution was corrupt; the confession was coerced or taken from someone who was mentally ill and didn't actually commit the crime; or the suspect was framed.

And this assumes that you don't care that juries will always--in our lifetimes, anyway--be more disposed to execute the black person or the poor person and to spare the rich one with the nice suit and the "I'm so sorry" act who's really the one they shouldn't pity at all.

I don't think you can do it unless, like Israel, you plan to reserve capital punishment for the one case in a century that involves a crime against humanity, a remorseless killer and a country sure of its righteousness as it carries out the sentence.

Israel reserves the right to do it again. But having tasted vengeance once, they haven't wanted to repeat it. Why do we?

Have some life-and-death news? Contact Bob Geary at rjgeary@mac.com

  • A death-penalty study is alive, but the moratorium bill is dead.

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