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Now reduced to ashes, Timothy J. McVeigh was only a short distraction in the anti-death penalty movement’s renewed campaign for abolition. This is the consensus among opponents of capital punishment who view the remainder of 2001 as pivotal in their efforts to sway the 66 percent of Americans who still support execution. Despite this, things have not been going their way this year. In June, U.S. Attorney General John Ashcroft made it easier for U.S. Attorneys to pursue capital cases in states that do not have the death penalty. And in the nation’s busiest death penalty state, Texas Gov. Rick Perry recently vetoed a bill that would have barred execution of the mentally retarded. And, as many observers predicted, the circus surrounding McVeigh’s June 11 death detracted from media coverage of the June 19 execution of federal inmate Juan Raul Garza, a more typical capital case involving issues of alleged racial and geographic bias. But recent polls show that the decline in support for the death penalty, down from 80 percent in 1994, was not affected by McVeigh’s execution. And some experts say the FBI’s admission that it withheld documents in the case further damaged public support. “In a case where you can’t afford to make mistakes, where the case is receiving so much scrutiny, these mistakes lend support to our argument,” says Robert Nigh, McVeigh’s longest-serving attorney. “Tim McVeigh’s execution in no way obscured in the public’s mind the fact that there are problems in the system,” says Diann Rust-Tierney, director of the American Civil Liberties Union’s Capital Punishment Project. “Things are very much in play. We now have a true debate on the death penalty.” But Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., says public support for capital punishment hasn’t changed much over the years. “Besides, even if we stayed at 66 percent, what other issue other than children drinking milk can you get 66 percent on?” he asks. MOVEMENT ON CAPITOL HILL The discovery of 13 innocent people on Illinois’ death row, and a resulting moratorium by Gov. George Ryan, jolted U.S. anti-death penalty sentiment back to life two years ago. Since then, academic and government studies have assailed the adequacy of defense counsel and alleged racial and geographic disparity among those selected for execution. The Bush administration’s position is that the federal death penalty is not discriminatory. It eased the way for more capital cases last month by eliminating a provision of the U.S. Attorneys’ manual that said a state’s lack of a death penalty should not, by itself, cause a federal capital case to be filed. “We did not feel that state sentencing laws should be singled out as a factor in making that determination,” says Justice Department spokeswoman Mindy Tucker. Such a provision “could lead to geographic disparity,” she adds. “I’m concerned the president is approaching the death penalty the same way he approached it in Texas, which is apparently to deny that there were problems in the system,” says Rust-Tierney. “Interestingly, we now see the state Legislature moving on a number of problems in the Texas death penalty system.” She says that Ashcroft’s assertion that the federal death penalty is not discriminatory may breathe life into a moratorium bill introduced in January by Sen. Russell Feingold, D-Wis. But David I. Bruck of the Federal Death Penalty Resource Counsel Project says that the small number of federal death row inmates, currently 18, diminishes any practical significance to a federal moratorium. By comparison, in the 38 states that have the death penalty, some 3,700 inmates are awaiting execution. On June 27, the Senate Judiciary Committee will hold hearings on a more widely supported bill, the Innocence Protection Act, which would broaden the ability of all prisoners to get DNA testing. The act prohibits states from denying a prisoner application for a DNA test in most cases, funds prosecutor DNA testing programs and withholds funds from states that do not comply with competency standards for indigent capital defense. While Rushford says he supports DNA testing, he warns that it should be allowed only in cases where the result could change a verdict. In other cases, he says, it would be a delaying tactic. MENTAL RETARDATION ISSUE As Rust-Tierney notes, the Texas Legislature has addressed DNA testing and approved a fledgling indigent defense system since President Bush’s election. On June 17, however, Gov. Perry vetoed a bill that would have barred the execution of the mentally retarded. The U.S. Supreme Court held on June 4 in Penry v. Johnson that a defendant’s mental retardation can be used as a mitigating circumstance during the penalty phase of a capital case, but does not rise to the level of barring execution. “They explicitly rejected the claim, but they did it in a way that didn’t shut the door forever,” says Bruck. With Florida Gov. Jeb Bush’s signature on a bill last month, 15 states have outlawed such executions. The high court will revisit the issue of whether executing the mentally retarded is constitutional in the fall in McCarver v. North Carolina, No. 00-8727. The court may directly address whether executing the mentally retarded has, under “evolving standards of decency,” become unconstitutional under the Eighth Amendment’s bar on cruel and unusual punishment. However, death penalty proponents such as Rushford assert that juries, not judges, should determine the sanity of a defendant. Despite the new issues, Barry Scheck, co-founder of the Innocence Project at Yeshiva University’s Benjamin N. Cardozo Law School in New York, says the genesis of the current debate, exonerations, are continuing apace, nearing 100. His effort to create a network of law schools that would look into questionable capital convictions has blossomed into at least 25 participating institutions, he claims. “Exonerations create a recognition that, given all that we have to do to get better lawyers and science … it brings people to the point that they say the death penalty can’t be used because it can’t be fairly administered,” Scheck says.

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