July 15th 2000

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Articles from this issue:

Cover Story: Human Genome mapping milestone?

Editorial: Managing Australia’s interests in S.E. Asia

Canberra Observed: Defence: opportunity beckons for Howard Government

Families: The hollowing of the middle class continues

New South Wales: Follow Swedish model: drug forum told

Trade: Canberra capitulates without firing a salvo

Doctors suspended over 32 week abortion

Straws in the wind

Education: New Queensland syllabus attacked

Economics: UN to look at the Tobin Tax

Media: GST ads unchained media bias

Development: Amartya Sen: the return of humane economics

Comment: The politics of suicide

Law: Death penalty debate resurfaces in USA

United States: Rising tide leaves poor floundeirng

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Law: Death penalty debate resurfaces in USA

by Martin Sheehan

News Weekly, July 15, 2000
As the presidential election campaign gears up in the US, the debate around capital punishment is also building strength. Since 1976 when the death penalty was reintroduced (in what some see as a conservative backlash against the libertarian counter-culture of the late 1960s) some 642 people have been executed in the USA. And while support for the death penalty is widespread throughout America, leading to a bipartisan approach on the subject by both Republicans and Democrats, questions are now being asked in light particularly of new forensic developments centred on DNA testing.

Both presidential candidates, Al Gore and George W. Bush, support the death penalty, but their stance is coming under increasing pressure in light of recent cases.

In particular Mr Bush, as Governor of Texas, is coming under scrutiny because of recent revelations regarding unsatisfactory legal process in a number of cases.

State-sanctioned executions in Texas account for one-third of all executions in America. A recent Columbia University study found that almost 70 per cent of death penalty cases nationally had serious errors leading the author of the study to comment that the system was “collapsing under the weight of its own mistakes”.

The Chicago Tribune also published its own study, concentrating on 131 cases that Mr Bush had presided over as Texas Governor. The study found that in 40 cases defence lawyers failed adequately to present evidence that may have helped their client during sentencing. In 29 cases a psychiatrist, who was later expelled from the American Psychiatric Association for untrustworthy testimony, gave evidence for the prosecution. In 23 cases the accused were convicted using criminal informants of dubious reliability.

In a telling about-face, Mr Bush recently issued a last minute reprieve for Ricky McGinn until new DNA evidence is studied. McGinn was convicted of the brutal rape and murder of his twelve-year-old step-daughter and DNA testing could prove decisively whether or not McGinn did rape the young girl.

One of the reasons capital punishment is so prevalent in the US is the broad democratic consensus supporting the death penalty. Whereas in Australia the death penalty has been repealed by the political élites, against the wishes of the majority, in the US democracy prevails and politicians dare not go against public opinion on the issue.

Since 1973, 87 prisoners have been released from death row, after new evidence placed their convictions in doubt. Already this year, three death row inmates have been released.

In January, Illinios Governor George Ryan attacked his own State’s “shameful record of convicting innocent people”, and announced a moratorium on further executions until a thorough review of the state legal system has been carried out. In the weeks following the revelations in Illinios a Gallup poll found that support for the death penalty had fallen to 66 per cent, the lowest in almost 20 years. Other states, such as Pennsylvania, Maryland and Washington State are also considering moratoriums.

In the past, the usual defence of the death penalty has been that it deters violent offenders. Due to the intricacies and quirks of the American legal system, however, the death penalty is not applied often enough or across a broad cross-section of the public, to be a truly effective deterrent. Latinos, for instance, account for 56 per cent of inmates on death row, and 42 per cent of executions. So the defence of the use of the death penalty rests ultimately on the desire for retribution and as a means of preventing violent criminals from ever again committing heinous crimes.

The quality of defence lawyers in Texan capital cases is also alarming. One lawyer fell asleep during his trial. Gary Graham, who was executed in late June, was represented by a part-time lawyer who runs a bar. Defence counsels are given little in the way of funds for hiring investigators and other support staff. There have even been cases where new DNA evidence has indicated the innocence of those charged, yet courts in Texas are loath to overturn convictions, especially in cases where vicious crimes, like the rape and murder of minors, is involved.

The issue will hardly register in the up-coming presidential campaign. Both candidates are pro-death penalty, as is out-going President Clinton, who learnt his lesson by going against the popular consensus many years ago in Arkansas.

Elected Governor in the 1970s, Clinton regularly commuted death sentences and was thrown out of office at the next election. By the early 1990s Clifton was a staunch advocate of the death penalty.

Moreover, DNA evidence is unlikely to change public opinion either: while DNA investigations are likely to force a re-examination of how the system operates in the US, arguably it will only strengthen pro-death penalty feeling, by providing a more reliable means of proving guilt or innocence.

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