Death Penalty Is Different

Attorney Andrew Cohen analyzes legal issues for CBS News and

It's been two weeks now since former Illinois Governor George Ryan jolted death penalty opponents and supporters alike by commuting the capital sentences of 167 murderers in his state. Some people have since criticized him for imperially and arbitrarily usurping the role of the courts and the legislature. Others, including me, have praised him for courageously doing something about the atrocious inaccuracies and unfairness within Illinois' capital punishment system.

Whatever you think of Ryan and what he did, however, it's clear from his clarion act that the death penalty itself evokes such an emotional response from people that it virtually vitiates the possibility of any middle ground in the debate over the role capital punishment ought to play in the criminal justice system. The past 14 days have revealed how vast the gulf is between supporters of capital punishment and death penalty opponents. They've also revealed how that gulf got to be so vast.

Part of the problem is language. When Ryan commuted the death sentences of those men, it didn't mean he had given them a key to their jail cells so they could walk among us again. The men simply moved from "death row" in prison— whether you want to define that in physical or metaphysical terms—to "life-without-parole" row in prison. They'll still die in jail—only it will be years later than they would have had they been executed. This is no small fact that mitigates the practical effect of Ryan's deeds. But you would have barely known that from some of the remarks made by some of the more vocal death penalty proponents.

For example, Governor Bill Owens (R-Colo.) went on Nightline just a day or so after Ryan issued his commutations and told a national audience that he, too, if he "wanted to," could "release every felon from the state prison system because a few who might be in there might actually be innocent… I think that would be wrong." Good soundbyte. Except, as noted above, Ryan didn't throw open the doors of Illinois' prisons and let out scores of convicted murderers. Intentionally or not, Owens morphed the meaning of the word "commutation" into something far more dramatic and in doing so ratcheted up the emotional volume over what Ryan actually did. Multiply this example by a hundred-fold—by partisans on both sides of the debate—and you get a sense of how easily the debate can go from reality to hyperbole.

But if reality sometimes gets lost in the translation of legal mumbo-jumbo, the raw data of the death penalty debate is subject to so much spin that it has become almost meaningless to the average news consumer. Take conservative columnist Jeff Jacoby, for example. Jacoby wrote a syndicated column in December about the Justice Department's annual survey of death penalty statistics. Using the feds' report called "Capital Punishment 2001," Jacoby made four main points in his piece. He concluded that the death penalty is rarely used; that it is invoked in only a tiny fraction of murder cases; that the "death penalty is imposed with disproportionate severity not on blacks but on whites" and that many killers on death row kill again, either in prison or after they escape.

Jacoby's piece was well-conceived and sharply-written and it was perceived by a good many folks as destroying many of the arguments death penalty opponents often use when they debate the merits of capital punishment. Except that Jacoby's column only told part of the whole story of the federal data about the death penalty. As someone who has covered the debate over capital punishment for years, I knew this to be the case-- but I didn't know exactly how or why. So I asked Richard Dieter, an expert on capital punishment (he's against it) who works at the Death Penalty Information Center, to take a look at "Capital Punishment 2001" and Jacoby's column and tell me if and how he thought Jacoby missed the boat.

Dieter didn't disappoint. Whereas Jacoby had pointed to the race of capital defendants in declaring that blacks aren't disproportionately sentenced, Dieter said it is the race of the victim that matters. "From the US General Accounting Office's review in 1990," Dieter wrote me, "to the award-winning study by Prof. David Baldus in Georgia, to the recent race studies by the principal state universities of North Carolina and Maryland, the overwhelming conclusion is that if you kill a white person, you are far more likely to get the death penalty than if you kill a black person. That is racism. That says that white lives are counted as more valuable than the black lives in the justice system."

Among other things, Dieter also took exception to Jacoby's conclusion that "at least 98 killers now on death row were already in prison when they murdered their victims; at least 37 others were prison escapees." Dieter told me that the DOJ study did not identify how the 98 people got into jail in the first place (they may not have been there for murder). "It is true," Dieter wrote, "that some people in prison commit murder and some escape and commit murder. To use the death penalty to solve that problem would mean you'd have to execute everyone sentenced to prison." So far, as near as I can tell, even Jacoby isn't supporting that option.

The point here is not that Jacoby is right or wrong about his ultimate conclusion that the death penalty is a good idea. The point is that even the most raw, objective facts of all concerning the death penalty can be spun in most any direction. If you read Jacoby's piece without reading Dieter's response to it, you'd have a completely different view of capital punishment today than if you read Deiter and not Jacoby or even if you read them both. That's the American way, I suppose. And it helps explain why people seem to be moving apart rather than drawing closer together in the great debate over whether the government ought to execute people in the name of the governed.

By Andrew Cohen