There is a fate worse than the death penalty in the US

If a year ago you had asked someone in the US whether a George Bush Presidency was going to be a good time for those who oppose the death penalty you would have got a hearty laugh. Most people would have replied it was not too likely, about as likely as the Supreme Court deciding an election result, or two US military vehicles with the most sophisticated radar capabilities in the world randomly colliding with foreign vessels in the middle of nowhere. . .

But as it happens, those of us who are committed to the abolition of capital punishment have more reason to celebrate than at any time in at least the last decade. George Ryan, the conservative and pro-death penalty Governor of Illinois declared a moratorium on the death penalty in his state last year after 13 death row inmates were found to be innocent. Since then a number of state legislatures have got on the moratorium bandwagon, even a Senate Committee in Texas! Support for a nation-wide moratorium on capital punishment has never been stronger, some polls put it as high as two-thirds of Americans, and exists across the political spectrum.

More states are moving to ban executions of the mentally retarded and the Supreme Court is soon to hear arguments that executing the mentally retarded should be constitutionally prohibited as "cruel and unusual punishment". Stories about convicting the innocent and the unfair administration of the death penalty are no longer just the province of liberal newspapers like The New York Times but appear in popular newspapers and TV shows like USA Today and Dateline, sometimes even on tabloid press and television. Basically, the death penalty just isn't very cool here any more.

There seems to be some consensus on the reasons for the eroding enthusiasm for death in the US. Some of it can be put down to international pressure. Government leaders in Europe and South America have repeatedly criticized US practices at highly publicized summits and the US administration of the death penalty has been castigated in a number of decisions by the European Court of Human Rights. Many believe that European frustration over the US use of the death penalty motivated the recent eviction of the US from the UN Human Rights Commission. Risking an onslaught of fugitive-migration, Canada now refuses to extradite fugitives to the US unless assurances are given that the US government will not seek the death penalty.

But Americans are not known to be too concerned about what the rest of the world thinks and thus mostly the change has occurred because of evolving attitudes within the country. Americans are uncomfortable with the relentless barrage of statistics which confirm that blacks are vastly more likely to receive the death punishment than whites, especially if the victim is white. Many people wince at stories of mentally retarded prisoners going to their deaths having saved a portion of their last meal "for later" or telling prison guards they would "see them tomorrow". Media reports emphasizing the vast error rate in capital trials are regularly juxtaposed with stories of lawyers who attend death trials dead drunk or who snore through vital testimony. More people than ever are becoming familiar with the typical profile of a death row inmate: black or Hispanic, dirt poor, usually mentally ill or retarded with a history of neglect and violent abuse during childhood and attached to the worst trial lawyer ever to lend their name to a 1800 number.

But more than anything else it has been the risk it poses to the innocent. As DNA testing rolls through the criminal justice system like a truth-seeking missile, or at least gets used a lot more than before, it is impossible to ignore the huge numbers of innocents being found on death row. According to a CNN/Gallup poll, 80% of Americans now believe an innocent person has been executed in the US in the past five years. Odds-on they are right given the 96 death row inmates found actually innocent since 1976. While many death penalty advocates are prepared to stand by the system - most are fond of the expression "you have to break a few eggs to make an omelet" - the average American is becoming a little queasy as the broken shells of innocent men continue to pile up like some bizarre Humpty-Dumpty nightmare.

Intriguingly, the President seems unaffected by these developments. For a man who presided over the most prolific death machine in the country and who, during the Presidential debates, seemed to have an enthusiasm for the death penalty that bordered on the downright creepy, he has done little to defend the current system. Not that it would be too easy to defend. After holding up the Texas justice system as a model for America it must be a little embarrassing to see people on death row in Texas being declared innocent more often than Dick Cheney has heart attacks. And of course Bush has other things on his mind - a possible global economic recession, war in the Middle East, a China standoff and spectacular Alaskan wildlife reserves going provocatively 'unmined' - but it seems safe to assume that Bush is not going to rush in to save the death penalty from its current malaise.

This is not to say there is not a long way to go. Polls indicate that general public approval of the death penalty is at its lowest ebb in 20 years, plunging from 85% to 60%, but obviously the penalty still enjoys majority support. Support will rise further as the country approaches the execution of Oklahoma Bomber Timothy McVeigh, the kind of person many people argue that the death penalty exists for. But it is a time of relative calm and optimism, a time when politicians and public advocates can voice concern over the administration of death without automatically being derided as bleeding hearted wimps who are soft on crime. It also seems like a good time to reflect upon the rest of the justice system in the US and the impact that the death penalty has had upon it.

The thing about having a punishment as extreme as death is that it makes all other punishment pale in comparison. The most obvious example in the US is the sentence Life Without Parole (LWP). This sentence is inexcusable in a civilized country. In many states LWP is not just a fixed time period like 25 years but a literal life sentence. You are telling someone they will grow old and die, in prison. There are vast numbers of men and women serving LWP sentences in the US and in many states a capital murder conviction has only two available sentences - death or LWP.

Many anti-death penalty advocates concede that LWP prisoners are the real victims of the death penalty. But they concede this quietly and privately. In public they actively support the penalty. Juries are considerably less likely to sentence an inmate to death if LWP is the other option. Numerous opinion polls show that death penalty support will drop considerably if the alternative sentence is assured LWP.

For capital defenders getting the sentence LWP is a good result. In jury trials defenders will emphasize the punishment to jurors, some pointing out that many think LWP is really worse than death. If they can get a prosecutor to agree to drop the death penalty they will often encourage a client to plead guilty. This can happen even if the defendant has a strong claim of actual innocence. In fact, some death row inmates pursuing claims of actual innocence have been offered LWP instead of clemency, and accepted. Its not like they have much choice. In some ways the position of a defendant who never faces the death penalty but who is threatened with LWP is even worse. At least a potential death row inmate has a chance of eventually getting a decent lawyer.

The extremity of the death punishment and the difficulty of conducting capital trials are considerable obstacles but the work also holds a certain glamour. Some of the best lawyers in the US are capital defenders working at volunteer capital defense centers. They are overworked and barely paid at all but they are brilliant, charismatic and driven. The centers can't handle every death-eligible case and they often inherit cases after trial conviction, sometimes files are little more than scribbles on a bar napkin, but they will win half or even two-thirds of all their appeal cases.

Death penalty work is also an exception to the general rule that public interest legal work lacks prestige. Graduates of the best Ivy League law schools will often volunteer at these centers, some become addicted to the work and stay on for years. This is great but it means some of the brightest people in the country are lobbying for the broader use of LWP, meanwhile general homicide defense work is at breaking point.

Imagine being poor, living in New York and being charged with a murder that you did not commit. You would probably be unable to make bail and thus will be detained at the famous Rikers Island prison. Unless you are facing the death penalty you will get a lawyer assigned to you by the State. And what a "lawyer" they will be - they probably will not come and visit you at prison at all, nor will they go to the crime scene to investigate, they won't hire a private investigator - even though they could get funds to do so - and forget about expert witnesses like pathologists or psychiatrists. They will probably spend around 20 hours total on the case, that's about what I spend reading personal e-mail every week. For many clients facing life in prison their only face to face contact will be to meet a harried man or woman who advises them to plead guilty, and fast. Of course you could insist upon your innocence, your right to a trial and a chance to clear your name. But with a lawyer who gets paid $25 an hour for work out of court what are the odds of success?

This is the situation exposed by The New York Times when they ran a three-part expose. After studying all of the homicide cases in New York last year they were horrified to discover that most appointed defense lawyers spent less than 2 weeks preparing murder cases. Two thirds of lawyers do not bother to visit their clients, or undertake vital background work like crime scene checks, investigation and finding expert witness. But forget about preparation, a great number even failed to present alibis in court, some were reprimanded in open court for their shoddy work or misunderstanding the basic principle of criminal law. Not surprisingly, The New York Times uncovered a number of stories where the guilt of the convicted defendant seemed extremely questionable.

But these miscarriages of justice get pushed aside while the death penalty machine is in operation. There is no right to counsel at all for an appeal. As a high profile attorney here told me "the reality is that if you are facing death, someone will probably take your case, if you get life you are usually on your own".

Some who are wrongfully convicted may approach the Innocence Projects set up by various law schools to assist imprisoned people with realistic claims of innocence. But they are deluged with applicants. Many focus solely on DNA based claims and, of course, they prioritize death penalty cases. When I tell people here that I am returning to Australia to help start up an Innocence Project in Sydney the normal reaction I get is a perplexed look and then "but you don't have the death penalty". I always think, for so many reasons, Thank God.