- The Washington Times - Thursday, June 15, 2000

Texas Gov. George W. Bush has granted Ricky McGinn a stay of execution to allow for a DNA test, but that's a second chance that precious few of the 3,600 men and women currently on death row will ever receive. Countless other inmates who were tortured into a confession, who had inadequate counsel, or who were put on death row based on testimony that was later recanted, will likely never have such a reprieve.

For many condemned to die, even if they did have access to a DNA test, it might not be of any use. DNA testing cannot be used to prove guilt or innocence unless biological evidence was used to convict a defendant in the first place. While access to DNA testing is a crucial piece of any proposal to rethink capital punishment, it doesn't offer all the answers. Of the 87 people who have been freed from death row to date since the 1970s, only eight were exonerated on the basis of a DNA test.

Questions of fairness and accuracy also must extend to the flaws in the system that mistakenly put those other 79 people on death row. The problems that plague the administration of capital punishment inadequate representation, police misconduct, racial bias and even simple errors are widespread. Again and again these injustices have been identified in capital punishment cases across the country: lawyers asleep or drunk in the courtroom, police torturing the accused and planting evidence, and juries condemning minorities to death at a rate as much as 4 times higher than the rate at which they condemn whites. Yet as these problems have been uncovered, the number of executions in the United States has continued to skyrocket. Last year the U.S. recorded more than 4 times as many executions as only 10 years ago.

Take the case of Texas death row inmate Calvin Burdine. Like the majority of inmates on Texas' death row, Burdine could not afford an attorney, so the court paid a lawyer to represent him. That lawyer, Joe Cannon, proceeded to sleep through crucial moments of the trial. The clerk for the trial judge said Mr. Cannon "was asleep for long periods of time during the questioning of witnesses." Three jurors noted he did most of his nodding off in the afternoon, following lunch.

While Burdine's new attorneys contend Mr. Cannon's conduct rendered him inadequate counsel, the Texas Court of Criminal Appeals rejected this claim. As Texas State Sen. Rodney Ellis, a death penalty proponent, said of the Burdine case on ABC's "This Week" on June 3, "The Texas Court of Criminal Appeals ruled apparently that you can be Rip Van Winkle and still be a pretty good attorney." Burdine's case is now before the U.S. Court of Appeals.

Because the administration of the death penalty is riddled with stories like Calvin Burdine's, Congress must act now to put a moratorium on executions nationwide. The scope and pace of this problem demand a moratorium on both state and federal executions while a national commission examines the administration of capital punishment in the United States. I have proposed a moratorium while the members of a blue ribbon commission, to be appointed by the president after consultation with the attorney general and Congress, would be required to issue a final report of their findings within two years.

Momentum for a death penalty moratorium has been steadily building since Illinois' Republican Gov. George Ryan effectively imposed a moratorium in his state earlier this year. Columnist George Will recently wrote that conservatives, especially, should be concerned about the way the death penalty is implemented today. George Will wrote: "Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order." Christian conservative Pat Robertson went a step further, saying, "I think a [death penalty] moratorium would indeed be very appropriate."

Before our government takes the life of even one more citizen, it has a solemn responsibility to every American to prove its actions are consistent with our nation's fundamental principles of justice, equality and due process. Before carrying out an irreversible punishment, the government must carefully consider the tough questions surrounding capital punishment.

As Mr. Ryan has shown the nation, a moratorium coupled with a complete review of the justice system is a common-sense, modest way to address an issue that is literally a matter of life and death.

Congress should enact a death penalty moratorium now. Until it does, the question of whether innocent people are being put to death hangs over our heads, and should trouble the conscience of every American.

Russ Feingold, Wisconsin Democrat, is a member of the U.S. Senate.

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