Both George W. Bush and Al Gore support capital punishment, so no matter who wins the Presidential election on November 7, those who would abolish the death penalty have their work cut out for them. Their cause is made easier by the fact that fewer Americans support the death penalty. Polls say that two-thirds of us favor the death penalty, down from 75 percent in 1994, and that when life imprisonment is an option, support for the death penalty drops to just 55 percent. People have undoubtedly been swayed by the number of death row inmates who have been released because DNA evidence proves their innocence. Those who say they value life really ought to wonder how many innocent people have been executed!

After death row inmates were exonerated in Illinois, Republican Governor George Ryan imposed a moratorium on death row executions. He says the system is "fraught with error" and needs study and reform. A Columbia University study found that two of three appealed death row sentences were eventually overturned because of overzealous police work and prosecution, incompetent defense lawyers, perjured testimony and withheld evidence. The difference between an appealed sentence and one that is left standing is often only a matter of money. Those who can afford to fight the system can frequently prove their innocence. Others languish on death row or are executed. The possibility of executing innocent people is so real that even the Christian Coalition's Pat Robertson supports a moratorium.

But George W. Bush supports the death penalty, and rather smugly says that the 145 people who were executed on his watch were guilty. According to many reports, Mr. Bush spends no more than 15 minutes reviewing the facts of a death penalty case, which may cast some doubt on his certainty. Few will forget the second debate, where Mr. Bush rather glibly said that the three men who were convicted of lynching James Byrd got the death penalty. Actually, two men got the death penalty and one got life imprisonment, but Mr. Bush rattled off his answer as if human life is of little consequence to him.

Now, studies are showing that the Texas judicial system is "thoroughly flawed" and weighed heavily against the rights of defendants in death penalty cases. Defense lawyers, especially when they are public defenders, are offered skeletal resources to make their cases. Some of the lawyers, regardless of resources, are barely qualified to defend their clients. Tales of lawyers meeting having just one or two meetings with defendants, failing to follow up on alibis or witness testimony, and even failing to familiarize themselves with the facts of their cases are common. Still, the deaths go on. As of October 10, 70 people had been killed in the United States. In 1999, 98 people were slaughtered. There are those who say that they have to pay for their crimes, but what if they are paying for being black and poor, not for a crime they committed!

Almost half of those on death row now are African American. Many studies say that accused murderers face a stiffer penalty when they kill whites that when they kill African Americans. Does race really matter when murder is involved? If African American accused criminals pay a higher price for their alleged crimes, then of course it does. But the Supreme Court has rejected statistical evidence as a way to show bias in the application of the death penalty.

Anyone who has followed recent reports of racial profiling in police departments all over the United States, though, knows that justice is hardly blind. Its flaws may result in a black male driver being pulled over to show his license and registration, or followed around in a department store, at its most benign. The same mindset that has made racial profiling a common practice reduces the likelihood that African American defendants will be treated fairly. The propensity for some police officers to believe that African Americans are guilty leads to gross miscarriages of justice. For example, in Texas, a black high school janitor and his white coworker found the body of a missing 16 year old white schoolgirl. The police told the two men that "one of you is going to hang for this," and focused on Clarence Brandley as the man guilty of killing the girl. Their circumstantial case was weak, and there were other leads, but Brandley was sentenced to death. Thanks to the Centurion Ministries, evidence emerged that another man committed the murder. Still, Brandley spent ten years of his life on death row.

That case had a happy ending, but death penalty researchers have documented cases where innocent people were killed. What if just 10 percentof the 3500 people on death row are innocent? Are we prepared to pay the price in lost life for society's mistakes?

Many who are supporting the death penalty now have second thoughts and are calling for a moratorium. But the man who leads the Republican ticket has not wavered in his support of the death penalty, even as his own state has been the site for reversed convictions because of new evidence. We have 21st century methods for determining guilt or innocence, but are stuck in the 19th century when it comes to crime and punishment.

JULIANNE MALVEAUX COMMENTARY NOVEMBER 2, 2000

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