Recent cases stir debate on execution

By Douglas Birch

Originally published December 4, 2005

As Maryland prepares to execute Wesley Eugene Baker as early as tomorrow, the debate over the death penalty is once again the subject of furious debate across the nation.

On Monday, Cardinal William H. Keeler made an unprecedented visit to Baker on Maryland's death row and spoke of the sacredness of human life. The next day, Virginia Gov. Mark R. Warner granted clemency to a convicted killer after rejecting similar pleas in 11 previous cases. And on Friday, a North Carolina inmate died by lethal injection for killing his estranged wife and father-in-law. Kenneth Lee Boyd was the 1,000th prisoner to be executed since the United States resumed capital punishment in 1977 after a decade-long hiatus.

Death penalty opponents point to recent events as evidence that capital punishment's days are numbered. "We think the death penalty is going to wither away on the vine," said David Elliot, communications director of the Washington-based National Coalition to Abolish the Death Penalty. "It's not really a question of whether it will be abolished, but when."

But supporters of capital punishment say that while its use has declined -- 125 people were sentenced to death last year versus an average of nearly 300 during the 1990s -- it will continue.

Overall, the evidence suggests that Americans may have decided that the death penalty should stand, but be applied far more sparingly than in the past.

As fewer people are sentenced to death, proponents argue, capital cases are getting greater scrutiny from police and prosecutors, which should lead to fewer reversible errors on appeal.

The development of advanced forensic techniques like DNA analysis have led to the release of inmates across the country in recent years, including 14 death row inmates. But those techniques may eventually ensure that convictions are far more reliable -- and thus difficult to challenge.

"Juries are more discriminating," said Robert Blecker, a professor at New York Law School who advocates continued use of the death penalty, though only for the most horrific crimes. "They're taking the death penalty more seriously. They're no longer using the broad brush, that says anyone guilty of murder deserves to die."

Cases such as that of Ruben Cantu, a San Antonio man executed in 1993, illustrate why doubts about the application of capital punishment have multiplied. Cantu, who was a 17 when he was arrested for murder, maintained he was framed, and last month the only eyewitness against him recanted, telling the Houston Chronicle that detectives pressured him to implicate Cantu.

Around two-thirds of Americans continue to support the death penalty in opinion polls. An October Gallup poll showed 64 percent of Americans support the execution of convicted murderers.

The Supreme Court has increasingly limited the scope of the death penalty, most recently in its 5-4 decision in March to bar the execution of those who commit a capital crime before age 18.

But with the White House's recent appointments, the high court is likely to continue to narrow avenues for appeals in capital cases, said Lyle Denniston, a veteran Supreme Court journalist and former Sun reporter who writes for scotusblog.com. President Bush is a strong supporter of the death penalty, and a White House spokesman said after the execution Friday that Bush believes that "ultimately it helps save innocent lives."

Even if the court restricts the application of capital punishment further -- with a blanket ban on the execution of the mentally ill, for example -- there is little likelihood it will strike down the death penalty in all cases. "I do not see any justice moving toward the Brennan-Marshall view that the penalty is always unconstitutional," Denniston wrote in an e-mail interview, referring to two former justices, William J. Brennan Jr. and Thurgood Marshall.

Public enthusiasm for executions waned in recent years, some experts and advocates say, for several reasons, including the fall in crime rates nationally since 1991.

Americans were also deeply troubled, analysts say, by the exoneration of a number of death row inmates in recent years, due in part to the use of DNA analysis and other advanced forensic technologies.

"I think it made everyone hesitate," said Matthew Crenson, a political scientist at Johns Hopkins University. "It created a new doubt about the death penalty."

The number of executions nationwide has been falling since 1999, when it reached 98 -- the highest number since 1976, when a Supreme Court ruling reinstated the punishment after a hiatus.

Last year, 59 executions were held. This year, that figure probably won't exceed 60, one anti-death penalty activist predicted.

Softer support for executions has affected state houses as well as court houses. For the first time in a half-century, experts say, governors can sometimes reap political benefits from granting clemency.

"Normally what makes denying clemency into a political no-brainer is not the great costs of granting it, it's the zero price of denying it," said Franklin E. Zimring, professor of law at the University of California. "The friends of murderers is not a big lobby in any state."

Murderers still have few friends. But today, voters are more likely to applaud clemency for inmates whose guilt is in doubt who seem to have sought redemption or who may have suffered racial discrimination in the courtroom.

In commuting the Virginia inmate's death sentence, Warner, a Democrat and potential candidate for president, noted the destruction by authorities of DNA evidence that might have exonerated the condemned man.

Gov. Arnold Schwarzenegger of California must soon decide whether to permit the execution of Stanley "Tookie" Williams, the one-time leader of a vicious street gang who now campaigns against gang violence from his prison cell.

Past clemency hearings in California, Zimring said, have traditionally been "nonevents," "kabuki dances" that always result in denials.

But Schwarzenegger has tumbled from political favor since his election two years ago as a non-politician and ideological maverick. A surprise decision to grant clemency, Zimring said, could help restore his image as a leader who stands above politics.

Because of the prominence of the case, the professor added, a grant of clemency could become "a benchmark ... in the decline and eventual abolition of the death penalty in the United States."

Gov. Robert L. Ehrlich Jr., too, must decide whether to commute the sentence of Baker, a 47-year-old Baltimore man convicted in the shooting death of a woman in a Baltimore County mall parking lot in 1991.

Baker's chances of winning a commutation seem better than they would have a decade or two ago. But Crenson said Ehrlich, thought to face an uphill battle for re-election next year, would irk his Republican supporters by granting Baker clemency.

"My guess is that the governor is not going to be able to pass on this one," he said.

Unlike their counterparts in the Virginia case, Baker's lawyers are not claming that their client may one day be exonerated. Instead, they have argued that judge who decided his fate should have been told that Baker was abused and neglected as a child.

The Baker case has raised one of the central arguments against the death penalty, however: that there are racial disparities in the way it is meted out.

Former Gov. Parris N. Glendening imposed a temporary moratorium on executions after a 2002 University of Maryland study that found blacks who killed whites were more likely to get the death penalty than other defendants.

Baker is black, and his victim was white.

Opponents of the death penalty argue that racial prejudice motivates juries to condemn blacks to death more often if they kill whites than blacks.

Supporters say the disparity results from the practical decision by prosecutors in jurisdictions such as Baltimore City, which are predominantly black and where juries are generally hostile to the death penalty, not to seek capital punishment in most cases.

"In white counties, the victims are white," Blecker said. "There are white juries, and those juries are more pro-death. Naturally prosecutors go for death [for murder defendants] more frequently."

No matter how the Baker case goes, the struggle over capital punishment will rage on.

The National Coalition to Abolish the Death Penalty plans to increase its efforts to persuade state legislatures to outlaw capital punishment, Elliot said. Thirteen states have already, in effect, done so. Among those who might end executions in the next few years, activists say, are New Jersey, New Mexico and Maryland.

The North Carolina execution on Friday, Elliot said, was a signpost on the road to the extinction of the practice, not evidence of its stubborn resilience.

"We're not discouraged, because the tide is turning the other way," he said. "It is a time for somber and sober reflection. But all the trends are heading toward the abolition of the death penalty in the United States."