February 1, 2001

IN AMERICA

Dead Wrong

By BOB HERBERT

Darby Tillis spoke briefly at a press conference on steps of City Hall in Lower Manhattan last week, which was remarkable. He was supposed to have been strapped to a gurney and executed by an injection of poison years ago. It turns out he was innocent. But that didn't become clear to the authorities until he had spent nine long, debilitating years on death row in Illinois.

It's a crapshoot if you're condemned by the government to die and you happen to be innocent — a crapshoot with tremendously long odds. You may convince some court of your innocence on appeal. Most likely you won't.

Watching Mr. Tillis was a little like watching a ghost. He stood stoically in a bitter cold wind coming off the East River. He spoke directly to the bank of television cameras arrayed before him. "The death penalty is too final," he said. "It is dead wrong."

The press conference preceded a hearing before the City Council on a resolution calling for an indefinite moratorium on the death penalty in the state of New York. The hearing and the resolution were not just ceremonial. They were part of a growing campaign to bring a halt to executions across the country because of the arbitrary and unfair ways in which the death penalty is administered, and because of the great potential for terrible mistakes to be made.

Four years ago the American Bar Association said executions should be stopped until a greater degree of fairness and due process could be achieved. Last year the governor of Illinois, George Ryan, declared a moratorium in his state, citing the exoneration of 13 death row inmates since 1977. And dozens of municipalities have approved non-binding resolutions, similar to the proposal in the New York City Council, urging their states to declare death penalty moratoriums.

Wariness about the death penalty has steadily increased as more and more becomes known about the treacherous ways in which it is imposed. Even staunch supporters of capital punishment are expressing concern about the execution of individuals whose lawyers were incompetent or slept through long portions of their trials; or prisoners so mentally deficient they asked to save portions of their final meals until later; or — especially — those individuals who might in fact have been innocent.

Death penalty advocates, conditioned to overwhelming public support for capital punishment, have been surprised, if not astonished, by some of the national polling data that has come in over the past several months. Two separate polls have shown that nearly two-thirds of Americans favor a suspension of the death penalty until issues about the fairness of its application can be resolved.

And a CNN/USA Today/Gallup Poll taken last June showed that only a slender majority — 51 percent — believe the death penalty is applied fairly. According to that poll, 80 percent of Americans believe an innocent person has been executed in the U.S. in the past five years.

"Support for the moratorium is based on a growing recognition that there are widespread, systemic problems that undermine any confidence that the death penalty in this country is imposed reliably, fairly or justly," said Elaine Jones, president of the NAACP Legal Defense and Educational Fund, who testified at the New York City Council hearing.

"The costs of prosecuting capital cases are enormous," she said, "diverting much-needed funds from other law enforcement and crime prevention programs in pursuit of a penalty that has never been shown to have a deterrent effect."

Anthony Amsterdam, a New York University law professor who has been a leading death-penalty defense lawyer for three decades, said he believed there was no way to really make the death penalty work. "You can't do it by being super-scrupulous about legal procedures," he said, "because what happens is that you winnow it down to a very few people, and you get 20-year waits on death row and incredible expenditures."

But if you don't do that, he said, "you increase the likelihood of killing people who are innocent."

The death penalty is outlawed in most civilized countries. The more vigorously it is applied in the U.S., the more its support among Americans diminishes. It's an idea whose time has gone.