- The Washington Times - Tuesday, June 20, 2000

OAKLAND, Calif.

Texans, like blondes, have more fun. Any capital-punishment fan could tell you that.

The Land of the Big Cow Pie has put 220 men and two women to death since riding the poisoned needle became America's No. 4 sport behind only football, baseball and basketball.

But some Californians are dreaming big dreams of catching Texas. One of them is Gray Davis, the governor. They'll have to hustle.

Texas not only has a big lead in executions, but despite George W.'s caution if not mercy in granting a temporary reprieve to Gary Graham while the state makes sure it's killing the right man, the state is making sure that unfair advantages remain with the district attorney.

When it was discovered that one Texan was convicted and sentenced to death after his defense lawyer slept through much of his trial, the attorney general of Texas argued in the appeal that a sleeping defense lawyer is OK. Better to let sleeping lawyers lie. The defendant with the sleeping lawyer, the attorney general argued, "failed to show which arguments [the defense] counsel could have made, but didn't because he was asleep." Texas, like Bill Clinton when he was governor of Arkansas, routinely executes the mentally retarded as well. If the state can raise a vein, the prisoner dies, retarded or not. There's always a last meal in Texas, but there's never a free lunch.

But nowhere, not even in Texas, are the executioners as bold as in California about saying that politics and not justice can determine who lives and who dies. The Democrats, once regarded as coddlers of criminals, have learned their lesson well. In the wake of a sobering Columbia University study revealing that nearly 70 percent of all death-penalty convictions are overturned on appeal the reversal rate is a breathtaking 87 percent in California spokesmen for Gray Davis insist the governor has no second thoughts, though some of these defendants were probably innocent.

"To the extent that the study sheds any light on California," says the communications director for the governor, "it underscores that California's judicial punishment is working properly."

The governor and his allies, like capital-punishment fans generally, are so dedicated to the death penalty that they wouldn't necessarily restrict it to the guilty. That's what's so stunning about the reaction to the Columbia University study, and before that to the growing momentum for a moratorium until the states make sure the needle is being applied only to the guilty. The politicians are so frightened of the public on this issue that they're cheerfully willing to execute an innocent man if he's the only one available to satisfy the public lust for blood. A headline in the San Francisco Chronicle puts it in stark and chilling relief: Sobering study won't outweigh California politics and governor's beliefs.

The governor's beliefs are that his constituents groove on the poisoned needle and that's good enough for him. "Democrats for 15 or 20 years have gotten beaten up on the issue of the death penalty," says Bruce Cain, director of the Institute of Governmental Studies at the University of California. "It's much harder for a Democratic governor in California to be on the frontier than a Republican governor of Illinois."

Indeed, Gov. George Ryan of Illinois made other governors, including Gray Davis, squirm when he declared a moratorium on the death penalty in Illinois after a Northwestern University investigation found that 13 men on death row in Illinois were wrongfully convicted. Since then, another look at the death penalty has been ordered in Nebraska, Indiana and Maryland.

"Democrats in particular have to be very careful with this issue," says Garry South, a political adviser to the governor. Because liberal judges appointed by former Gov. Jerry Brown consistently overturned death-penalty convictions, "Democrats are still paying the price."

What is so depressing about the reaction to the idea of a moratorium is that no one is talking about abolishing the death penalty capital-punishment fans will still get their executions but about making sure that only the guilty are executed. That ought to be a no-brainer. But when the New York Times asked Al Gore the other day how many executions of the innocent he would accept to keep the death penalty, he was stumped for the only correct answer zero and hemmed and hawed as if someone had asked him to name his favorite earth tone.

Conservatives ought to be encouraging a moratorium, since it's about protecting innocent life. But they aren't. They're guilty of exactly what murderers are guilty of indifference to the death of an innocent.

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