America - Andrew Stephen on the decline of death row

There are 3,700 people on death row in America - but, very slowly, public opinion is turning against

I still feel guilt over a letter I received years ago when I was Washington bureau chief of the Observer in the dying, decadent days of its Lonrho ownership. The letter was typical of the kind that come to newspapers and normally go straight into the bin: it was 28 pages long, handwritten and was from a prisoner on death row in Virginia. The gist of the letter was, predictably, that he was innocent - but that, specifically, his innocence could be proved by DNA analysis, which the state was unwilling to do. I pondered over the letter for weeks and finally decided that there was nothing I could do to make Virginia pay for expensive tests that it did not want to carry out, and the man was duly executed. I often wonder whether, had I engaged myself in his case - especially since DNA fingerprinting was invented by my old Luton Grammar School mate, now Professor Sir Alec Jeffreys - I could have saved an innocent man from the electric chair.

I mention his case because executions are suddenly becoming hot news again here. Last Tuesday, the subject was once more before the US Supreme Court, which basically decided this time that it is irrelevant whether a person sentenced to die has had inadequate legal representation. Spare a thought, meanwhile, for Chris Simmons, a man due to be executed on Wednesday in Missouri. He was 17 at the time of his crime, under the influence of every drug and type of alcohol around, and suffered from a schizotypal mental disorder - evidence that, outrageously, his lawyer was not allowed to put before the jury. Despite legally being a child at the time of his offence and suffering from severe mental illness, he will almost certainly be put to death on Wednesday.

So be it. But there is some cause for optimism. A bill jointly drawn up by a Democrat and a Republican will come before Congress shortly, and all the signs are that it will pass through both the House and Senate. It is called the "Innocence Protection Act", and, unbelievable though this sounds, its purpose it to prevent the "wrongful execution of innocent people". It will ensure that "eligible" prisoners can get DNA testing. It has wide bipartisan support - and, because of it, people like my correspondent in Virginia now stand a reasonable chance of being saved.

This is all part of a process masterminded in Illinois by a professor of journalism called David Protess, who became a lifelong opponent of capital punishment when, as a child, he was close friends with the two Rosenberg boys orphaned by their parents' execution in 1953. He realised that the way to change American public opinion was not so much to appeal to notions that the death penalty is intrinsically morally wrong - but to prove that innocent people were being executed. Using his journalism students as "investigators", he has proved that more than a dozen men were innocent of the murders for which they faced death - one of them just three days away from the executioners' needle. Protess told me a couple of years ago that, albeit slowly, American opinion was turning against the death penalty.

So far, more than 100 people on death row have been thus exonerated: one, Thomas Kimball, became the nation's 101st death row inmate to walk to freedom recently when the Supreme Court decided that crucial evidence had not been put before the court. In Illinois, the right-wing governor was so shaken by Protess's coups that he ordered a moratorium on executions and an inquiry: with nobody currently being executed there, the inquiry has urged that the mentally retarded should not be executed, and that juries must always be told that a sentence of life imprisonment, meaning life, is an alternative. The governor of Maryland has also issued a moratorium on executions, saying: "We must have absolute confidence in the integrity of the process."

A quick study of executions in his state, in fact, reveals that if you are tried in Baltimore County, you are much more likely to be sentenced to death than if you are tried elsewhere in the state: of the 13 men on Maryland's death row, nine were convicted in this one small geographical area (and eight, incidentally, are black). If your case is heard in the actual city of Baltimore, a death sentence is much less likely; all of which means that it is literally a matter of geography whether you live or die. It is why John Walker Lindh and Zacarias Moussaoui are both to be tried in northern Virginia, where juries and judges are notoriously brutal.

But most telling of all is that the number of inmates on death row in America is declining, and now stands at around 3,700: even in places such as Texas, Florida, Alabama and Missouri, death rows are becoming smaller. It probably won't save Simmons's life on Wednesday - but, bit by bit, public opinion is turning against execution. And America might then lose its place alongside Iraq, Iran, China and Saudi Arabia as one of the top five executing nations in the world.

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