California Bar Journal
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Calling for a delay to ensure justice for all
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The most common fantasy among judgesGov. George Ryan of Illinois won praise locally and worldwide when he announced earlier this year that he would impose a state moratorium on executions, pending a study of why the state’s death penalty system has gone so horribly wrong.

He acted after the balance had swung to judicial findings of innocence for 13 Illinois death-sentenced inmates, one more than the number of people actually executed in the state since capital punishment resumed.

Illinois has garnered nearly universal support for this pause in executions. In advance of this decision were legislative proposals, judicial analysis and media exposure of a system riddled with flaws.

William G. PaulConfronted with a string of convictions and death sentences for factually innocent defendants, the public appears ready for review, for an assurance of accuracy, before any one else is executed.

In short, the public is ready for reform.

Public support for the death penalty rests on the conditions that it is reserved for the guilty, that it is imposed only where appropriate, and that it is imposed fairly.

Growing awareness that those conditions are often violated provides an opportunity for true leadership in governors’ mansions across the land.

Nearly two-thirds of respondents to a recent survey in Missouri said the most important goal of justice should be to ensure the accused is actually guilty of the crime. Illinois’ experience shows that this “most important goal” is seriously shortchanged.

A new report from the American Bar Association’s Section of Individual Rights and Responsibilities, A Gather-ing Momentum: Continuing Impacts of the American Bar Association Call for a Moratorium on Executions, makes a strong case that growing public awareness of the risk of error in sentencing is leading to increased tolerance for delay in executions.

The report notes more than 650 organizations nationwide support an initiative to implement an immediate moratorium on executions.

Proponents include a wide range of civic, religious, legal and non-governmental organizations.

More recently, the publication of James S. Liebman’s report, A Broken System: Error Rates in Capital Cases 1973-1995, has added to the momentum for a moratorium.

Liebman, a professor at Columbia University law school, and his principal academic collaborators, Jeffrey Fagan of Columbia and Valerie West of New York University, tracked every death sentence case that went through the legal system in the 23 years following the 1972 Supreme Court decision that re-established the death penalty in this country.

Their findings: Of the 4,578 death sentences adjudicated completely during these 20-odd years, in 68 percent serious errors were found.

Implement-ing a national moratorium on death penalty cases is an issue crying for leadership in the seats where power can implement change.

The Amer-ican Bar Assoc-iation urges the governors in each of the 37 other states which now have a death penalty to put the death penalty on hold until they too can be sure their systems are not flawed.

While we take no position on the death penalty itself, we urge them to test their assumptions and reliance on the fairness of their systems for imposing it by taking a hard and critical look.

This is not a call to abolish capital punishment.

It is a call for delay — delay to ensure justice.

William G. Paul is president of the American Bar Association and a frequent contributor to the California Bar Journal.