Hope and outrage: Will death penalty reforms foreshadow abolition?
by Joseph Wakelee-Lynch

In the summer of 2002, two important reforms, both emanating from the U.S. Supreme Court, occurred in the U.S. capital punishment system. First, the court ruled in June that the execution of people who are mentally retarded is unconstitutional (Atkins v. Virginia). Second, the court, in a case that could affect nine states, overturned a death sentence that had been improperly imposed by a judge; that power should properly reside only with juries (Ring v. Arizona).

The Supreme Court decisions do not signal the impending abolishment of capital punishment, but they stand as two more in a series of small successes that demonstrate that a reevaluation of the death penalty, possibly at a fundamental level, is taking place in the U.S. For example, a U.S. district judge ruled in early July that the Federal Death Penalty Act is unconstitutional. In May, Gov. Parris Glendening, of Maryland, called for a study into whether the state’s death penalty is applied in a racially discriminatory way.

Although the Supreme Court decisions were both welcomed and needed, activists remain leery about abandoning their determination for the hope of optimism. Yet some have pointed out an interesting feature in the recent opinions of the court.

"In both Supreme Court rulings this summer," said Eric Moon, director of The American Friends Service Committee death penalty project in Oakland, Calif., "the judges referred to their earlier decision in the 1976 Gregg v. Georgia case." The Gregg case allowed the resumption of the death penalty after a four-year hiatus, but it said that the death penalty should be reserved for only the most heinous of murders. Yet, county prosecutors, who decide which murder cases are tried as capital crimes, seek the death penalty in a wide variety of murder cases, heinous or not, and for a wide variety of reasons.

When Gov. Glendening announced his moratorium, he cited the danger of the death penalty being a "lottery." The prosecutor’s office may be the greatest source of unpredictability in the capital punishment system. Some try what appears to be an inordinate number of murder trials as capital cases; others, from cash-strapped regions, try few or none. Even similar crimes within the same county may be tried under different charges. When prosecutors’ decisions are examined across the country, therefore, inconsistency seems the only consistent rule; and inconsistency in the capital punishment system has been a concern of the Supreme Court in the past.

Bruce Shapiro recently pointed out in The Nation that the Atkins ruling is hopeful because it proves that grassroots organizing is having an impact. Organizing has been effective because arguments about fairness and innocence are extremely persuasive.

But even though practical concerns about fairness and innocence are prompting the country’s re-evaluation, at the core of the movement against the death penalty is a significant portion of the religious community, which sees the death penalty, whether reformed or not, as a moral outrage, for both the innocent and the guilty.