The End of Executions?
The Anti-Death Penalty Movement is Gathering
by Linda Lutton
In These Times, October 2000
When Bill Ryan started visiting Death Row prisoners in Illinois
some five years ago, he got a lot of unsympathetic reactions from
friends. "It used to be that I would talk about being opposed
to the death penalty and people would look at me like I was crazy,"
says Ryan, a retired social worker who helped form the Illinois
Death Penalty Moratorium Project in 1996. "I live in suburbia,
and there are a lot of very conservative people out here. They'd
look at me like I was nuts."
No longer, he says.
For death penalty activists, the landscape has undergone a
sea change in a very short time. Not long ago, people like Bill
Ryan were toiling in an environment where politicians embraced
executions as evidence they were tough on crime, and where the
death penalty had such overwhelming support that it barely registered
as a debatable issue.
Now, particularly after Illinois' pro-death penalty Gov. George
Ryan declared a moratorium on executions in that state, the movement
to end the death penalty has been catapulted forward. Six states
are currently conducting reviews of their capital punishment systems,
as is the federal government. Both chambers of the New Hampshire
state legislature voted to abolish the death penalty in that state
(though the measure was vetoed by the Democratic governor). Moratorium
legislation is pending in Pennsylvania, Ohio, New Jersey and Missouri,
and similar bills have been introduced in 10 other states over
the past two years. A spate of city governments have passed resolutions
supporting moratoriums. In Congress, several bills are pending
that would impose moratoriums or institute safeguards against
For the first time in decades, it's arguable that abolitionists
have the upper hand. How things arrived at this point is a combination
of hard work-on the part of activists, lawyers, journalists and
the civil rights and religious communities-and, as in any movement,
an element of timing and luck. A look at how the movement to abolish
the death penalty has changed gives insights into how strong the
movement is-and where it might be headed.
Last year 98 people were executed in the United States-more
than in any year since death penalty laws were put back on the
books in 1976. By comparison, 63 people were put to death in the
entire decade after the death penalty was reinstated. Executions
have seen their sharpest increases in the '90s, as have the rolls
of Death Row inmates (currently at more than 3,600). According
to Amnesty International, only China and the Democratic Republic
of Congo executed more people than the United States in 1998,
and this country is the world leader in executions of prisoners
who were under 18 at the time of their capital crime.
The increase in executions and death sentences can be traced to
a politically motivated get-tough-on-crime spree embraced by politicians
from both major parties that dates back to Nixon and went through
a revival in the early '90s. "The death penalty was the poster
issue of the whole tough-on-crime movement," says actor and
activist Mike Farrell, president of Death Penalty Focus in California.
In 1988, the federal death penalty was revived for murder
committed in the course of large-scale drug trafficking. Under
President Clinton, the Violent Crime Control and Law Enforcement
Act of 1994 expanded the federal death penalty to some 60 additional
crimes, including several that didn't involve murder treason,
espionage and large-scale drug trafficking. Two years later, following
the Oklahoma City bombing, Clinton signed the Anti-Terrorism and
Effective Death Penalty Act. In an effort to shorten the amount
of time between conviction and execution, the law established
tighter filing deadlines, limited the opportunity for evidentiary
hearings, and allowed only a single habeas corpus filing in federal
court. It was passed a year after Congress eliminated all federal
funding for post-conviction capital defense organizations, which
had assisted Death Row inmates in habeas proceedings.
The outlook even a few years ago was bleak. "You'd go
to executions-I even went to double executions-and nothing was
happening," Bill Ryan says. "It was frustrating."
What has happened since is all about critical mass. "A
confluence of events came to a head," Farrell says. "There
was the conference on the wrongly convicted at Northwestern University
in Chicago, the whole explosion of the issue of innocents on Death
Row, Governor Ryan's decision to declare a moratorium, the Chicago
Tribune's articles, the movie of Sister Helen Prejean's book Dead
Man Walking-there were so many things that were happening. All
of these things kind of collided at a time and ... people suddenly
began to wake up. And I think it has established a momentum that
in my view is irreversible."
This has left activists somewhere between dumbstruck and giddy.
"It was like they finally heard us," says JoAnn Patterson,
mother of Illinois Death Row prisoner Aaron Patterson, who has
worked with the Illinois Death Penalty Moratorium Project.
Bill Ryan adds that for the first time in his five years working
on the issue, it feels like he's part of a movement. "I didn't
think it was a movement until the last six or eight months,"
he says. "But it's fast becoming a movement."
For the past three decades, the foot soldiers in the movement
against the death penalty have worked out of churches and makeshift
home offices. They've maintained a consistent presence at executions,
drawn attention to the wrongfully convicted, and undoubtedly saved
dozens of lives. At times they've put enough people in the streets-particularly
in the case of Pennsylvania
Death Row prisoner Mumia Abu-Jamal-to attract media attention.
But despite being able to mobilize thousands and attract international
support, abolitionists were unable to get mainstream Americans
to buy into their cause.
Abolitionists haven't suddenly won the ear of Americans because
they're presenting new arguments. "Eighteen years ago when
I started investigating these cases, nobody would pay any attention,"
says Rob Warden, executive director of Northwestern University's
Center for Wrongful Convictions and former editor of Chicago Lawyer,
where seven of the first 10 wrongfully convicted Death Row prisoners
in Illinois were first exposed. The Death Penalty Information
Center has a library of studies-some of them nearly 10 years old-that
bring up issues only recently catapulted into the public consciousness
and being seriously reviewed: innocents on Death Row, prosecutorial
misconduct, ineffective counsel. So why now?
AA ore than anything else it has been the recent parade of
exonerated men marching off of Death Row-13 of them in the past
two years-that has triggered movement on this issue. "The
issue of innocence, the presence of a number of innocent people
who have been freed from Death Row and stories people have now
heard-that convinced people outside of the usual opponents that
there was something wrong," says Richard Dieter, executive
director of the Death Penalty Information Center.
The debate over the death penalty, which in the past has focused
on ethics and morality, now centers on the justice system as a
whole. "I don't think that people are being morally convinced
that the death penalty is wrong ," Dieter says. "That's
not what's changing. What's changing is a practical, fact-based
concern about how the death penalty is applied. That's where the
numbers are shifting."
That has meant that abolitionists are suddenly finding they
may have at least temporary new allies in the fight who have no
moral objections to the death penalty. George Ryan has repeatedly
said he believes the death penalty is a reasonable societal response
to the most serious crimes, and his Governor's Commission on Capital
Punishment is charged with making "recommendations and proposals
designed to further ensure the application and administration
of the death penalty in Illinois is just, fair and accurate."
After an August public hearing before the commission, where
all but one of the 47 speakers voiced opposition to the death
penalty and detailed concerns ranging from medical doctors' participation
in executions to what one assistant public defender called "the
inherently arbitrary nature of the death penalty," the Chicago
Tribune editorialized that the commission's first public hearing
was a "disappointment," where "dozens of death
penalty foes dominated the speaker list, overloading the hearing
with repetitive rhetoric rather than thoughtful insights into
specific problems." The Tribune went on to say that the commission's
mission "is to provide specific ideas for; reform, not a
recommendation on whether to keep the death penalty.
The possibility that the steam in their movement might be
diverted to try to create a system that kills only the guilty
and protects the innocent has not eluded activists. Lawmakers
and others who have benefited politically from supporting the
death penalty, Farrell says, have sensed public concern and have
thus taken up the issue, but are "eviscerating the moratorium
by insisting on 'reform.' "
It could even be questioned that the notion of a moratorium
is already a dilution of the stronger stance of abolition. That's
something that doesn't seem to worry most abolitionists. "Abolition
and a moratorium-it's the same thing in essence," says Robert
Drinan, a Georgetown University Law School professor and a columnist
for the National Catholic Reporter who has written about the death
penalty. "If you have a moratorium it is unlikely that you'll
ever go back and execute people. And that's why the American Bar
Association chose a moratorium. We didn't urge the ABA to advocate
for abolition because we didn't have the votes. But a moratorium
means that you look at this thing and then you discover that it's
Drinan's confidence that abolition is the only logical outcome
of a careful study of the death penalty-even if that study's avowed
goal is to reform the system-is shared almost across the board
by activists. "I don't worry about a fair examination of
the death penalty," Dieter says. "It is one of these
things that has some very inherent problems that are going to
be very difficult to fix."
But activists' confidence is not necessarily shared by others.
"I think there's a very good possibility that you'll see
executions resume in Illinois," says Chicago Tribune reporter
Steve Mills, who co-authored the series "Failure of the Death
Penalty in Illinois" as well as a recent investigative series
on Texas' capital punishment system that ran the week before Gary
Graham's execution. "I think it would be pretty hard to come
back and say, 'OK, We fixed the system. Now let's go ahead,' "
Mills says. "But I think it's possible that politicians will
Former Illinois Sen. Paul Simon, who co-chairs the Governor's
commission on Capital Punishment and opposes the death penalty,
says a pragmatic approach is better than nothing. "Part of
the legislative process is you do what you can and you don't always
win 100 percent," he says. "If the commission can reduce
the number of executions in the state, is that going as far as
I'd like to see it go? No. But is it worthwhile to save some human
Changes in public opinion may allow politicians an opportunity
to reconsider their stand. A Gallup poll taken in February registered
support for the death penalty at a 19-year low; but that just
means support is overwhelming, rather than nearly unanimous: 66
percent surveyed said they favored the death penalty for people
convicted of murder. But recent polls are showing that similar
majorities support a moratorium on executions. In a nationwide,
bipartisan poll released by the Justice Project in September,
64 percent of those surveyed said that they favored suspending
the death penalty until its fairness could be studied- in light
of Death Row prisoners who have been released based on new evidence
or DNA testing. The San Francisco Chronicle reported in June that
73 percent of voters surveyed in California-which has the largest
Death Row in the country- are in favor of suspending executions
to study the fairness of the state's capital punishment system.
And even in Texas, which accounts for 33 executions so far this
year (about half of the national total), a Houston Chronicle survey
showed that 3 out of 4 respondents said the state should declare
a moratorium on death sentences in cases that might be affected
by DNA testing.
In a year when the Democratic Party might have anticipated
a shift in public opinion on this issue, it went in the other
direction and inserted a pro-death penalty plank in the formerly
neutral platform. Al Gore has been a longtime believer in the
death penalty, though he did admit feeling "uncomfortable"
with the findings of a Columbia University study released in June,
which showed that in two of every three death penalty cases between
1973 and 1995 the sentence was reversed on appeal because of errors.
George W. Bush largely has escaped public criticism, despite his
sardonic public comments (such as the Talk magazine interview
in which Bush mimicked Karla Faye Tucker pleading for mercy before
her execution) and loud claims that Texas may have executed innocent
prisoners on his watch. Bush has plowed ahead with state killings
in Texas, signing off on execution orders at the rate of about
one per week during the presidential campaign. Executions are
scheduled for the two days following the election.
With the innocence issue playing such a central role in the
shift in death penalty politics, there is one obvious remaining
task for abolitionists to prove that an innocent person has been
executed. That's the Holy Grail in this fight, and perhaps the
one thing that could irreversibly alter public opinion on the
death penalty. Academics, activists and attorneys have suggested
the names of dozens who have been executed despite substantial
doubts about guilt, but lack of evidence hasn't been their biggest
obstacle. "We've allowed the other side to define innocence,"
says Warden of the Center on Wrongful Convictions. "And basically
they've defined it by saying, 'The innocent person is who we say
is innocent. We say nobody is innocent; therefore, nobody is innocent."'
Prosecutors have fought hard to prevent post-execution DNA
testing. After Joseph O'Dell was executed by Virginia in 1997,
the Catholic Diocese of Richmond requested samples for DNA testing-testing
courts had refused to allow before O'Dell's execution. Arguing
against turning over the samples, state prosecutors maintained
that "people will shout from the rooftops that the Commonwealth
has killed an innocent man" if DNA samples from the victim
did not match blood found on the clothing of the executed. The
court ordered the DNA evidence destroyed. Lawsuits in several
cases are currently pending to allow for DNA testing in post-execution
But Warden says that even in a case where DNA points to innocence,
prosecutors would still insist they executed the right man. "The
guy may have been convicted of murder and rape and sentenced to
death," he says, "and DNA might even establish that
he could not have been the source of the semen, and the prosecutors
will say, 'Well, she could have had consensual sex with someone
else.' " He quips: "We are referring to that now as
the 'unindicted co-ejaculator theory."'
However, it's unclear whether proving that an innocent person
has been executed would matter to Americans. In the same February
2000 Gallup poll in which 66 percent of those surveyed said they
were in favor of the death penalty, 91 percent said they thought
innocent people had been sentenced to death in the past 20 years.
In another poll released at the end of June, 80 percent said they
believed an innocent person has actually been executed in the
United States in the past five years, and still 66 percent favored
the death penalty.
Warden says that despite the current avalanche of events that
seem to be lining up in abolitionists' favor, Americans' views
on the issue-and politicians' actions-are largely incident-driven.
And while exonerated Death Row prisoners have dominated the news
lately, all it may take to turn back the tide would be one prominent
For now, those working in the legal, political, organizing
and religious arena-whose work, Warden says, has been behind every
exonerated Death Row prisoner, Illinois's moratorium, investigative
reports and legislative initiatives-will continue their labors
in a more amenable, if fragile, climate. "The momentum is
all there," Warden says. "But the wind can change."
Lnda Lutton is a Chicago-based freelance writer.
Rights, Justice and Reform