Although the percentage had decreased slightly from 1997, death penalty opponents still had reason to fear the long brutal winter would never cease. Then, suddenly, like an unexpected January thaw, the moratorium movement burst into the public’s perception and changed everything.

The big break came in Illinois. It began with an extraordinary five-part investigative series published by the Chicago Tribune in November of 1999. Taking on a massive project, Tribune reporters reviewed each of the 285 death penalty cases prosecuted in Illinois during the 22 years since capital punishment was restored. Their findings were explosive:

• While only 12 people had been executed during this time, 13 death row inmates had been cleared of guilt, one just two days before he was scheduled to die.
• Approximately half of the death penalty cases taken on appeal had been reversed and sent back for new trials or new sentencing hearings due to serious trial court errors.
• Misconduct by prosecutors and police was widespread.
• African Americans were systematically excluded from many capital juries.
• Unreliable jailhouse-informant testimony was admitted in at least 46 death penalty cases.
• 33 death row inmates were represented at trial by lawyers latter disbarred or suspended.

This remarkable piece of journalism led to an equally remarkable act of statesmanship. On Jan. 31, 2000, Gov. George Ryan, a conservative Republican and long time death penalty supporter, announced that he was imposing an indefinite moratorium on executions in Illinois. “Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate,” Ryan declared.

Building on the Illinois experience, the moratorium movement quickly took off nationwide. The Moratorium Campaign, for example, led by Sister Helen Prejean, author of Dead Man Walking, is gathering signatures to pressure United States politicians and world leaders to at least temporarily halt executions. While little has been accomplished legislatively to this point, serious death penalty reform, which for years seemed no more than a pipe dream, now appears politically viable: A number of states are considering moratoriums, and others are studying how the death penalty is applied. Bills supporting a federal moratorium have been introduced in the House and Senate.  

Yet despite this good news, the truth is that the moratorium movement leaves many death penalty opponents feeling uncomfortable. Some long-time abolition activists, including actor Mike Farrell, have gone so far as to make public statements warning of dangers that lurk within the moratorium agenda. Why this lack of enthusiasm?

It’s a matter of definition. “Moratorium” is defined by Webster’s as “a legally authorized period of delay in the performance of a legal obligation.” Note the emphasis is on a ‘delay,” and a process labeled “legal.”

Putting aside the abolitionists’ skepticism, however, many new converts to the cause condition their support on these very same points. They aren’t opposed to capital punishment per se, they just want to see the system fixed so that it operates fairly. In other words, they won’t be protesting the system forever.

This creates two serious rubs for death penalty abolitionists: First, while we’re outraged by the unfair and sloppy way the death penalty is administered, we would still favor ending capital punishment even if the procedure could somehow be made to work perfectly; and, secondly, we also know that a “fair” death penalty is a practical impossibility. People can fiddle with capital punishment as much as they want, they will never completely fix what ails it.

True, some of the more odious features of the system can and should be improved. We can work to get incompetent defense lawyers out of the process, provide better investigative resources to capital defendants, increase the availability of DNA testing, and investigate and punish prosecutorial and police misconduct. But, even if society would do all of these things and do them well, this still would not fix the death penalty. Even under such a pie-in-the-sky-reform scenario, innocent people would still die, African Americans would still be executed disproportionately to whites, and the choice of who lives and who dies would still be exercised in an arbitrary and unpredictable fashion.

We will never fix the jury system so that all mistakes are avoided, because mistakes are an inherent part of human life. We will never, at least in our lifetimes, fix the racial injustice that pollutes every nook and cranny of the machinery of death, because the judgment of death is imposed and enforced by human beings who are programmed to think in racial terms. And we will never fix the arbitrariness and unpredictability of the death penalty, because arbitrariness and unpredictability are inherent to its makeup — part, if you will, of its genetic code.

None of this is being said to ‘trash” our system of justice. I still believe we have the best judicial system in the world and I’m proud to be part of it. But you can love an institution and still accept its limitations. And as good as our legal system is, it’s still operated by human beings who have no business trying to play God.

I’m not a criminal lawyer, but like anyone else who practices law, I frequently see examples of how chance and plain dumb luck can affect the outcome of legal disputes. Not long ago, I defended an anesthesiologist in a medical malpractice lawsuit involving the death of a young woman. The first trial ended with a hung jury. We later learned that the jury had deadlocked seven-to-five against my client. Since a verdict can be returned in a civil case in Kansas based upon the agreement of just 10 of the 12 jurors, we had come perilously close to losing the lawsuit. 

Not surprisingly, when the time for the retrial came, the lawyers on the other side were feeling pretty confident, even cocky. They had, after all, won over most of the jurors during the first round and they naturally assumed that they could do as well or better in the rematch.

But they were wrong. Not only did my client win the second trial by a unanimous jury vote, it only took the jury about an hour to make up its mind, which is a very short deliberation in a malpractice case. When I talked to some of the jurors afterwards, it quickly became apparent that they considered the decision in favor of my client to be a no-brainer.

Nothing tangible had changed between the two trials. The same lawyers put on the same witnesses who testified to pretty much the same things they did the first time. Yet the result was radically different. Why?

Damned if I know. For whatever reason, 12 new jurors weighing the evidence through the prisms of their own unique life experiences saw things differently from the first bunch. It happens all the time. The practice of law isn’t mathematics — the numbers don’t always add up in some logical way and intangibles often rule the day. There are a thousand variables at play during a trial, any one of which may prove critical. A list of just a few of these would include:

• How good an impression do the respective parties to the case make?
• Do they come across as likable? Do they seem sincere?
• How talented are the lawyers for both sides?
• Are all the lawyers “on their game?” Or is one or more of them having personal problems, suffering from burn out or short on sleep?
• How skilled is the judge? Is the judge fair to all sides, or is there a conscious or subconscious bias at work?
• Has all the evidence been properly preserved? Or was critical evidence lost, destroyed or tampered with?
• Will the witnesses each side calls make good appearances, or are there necessary witnesses whose appearance or demeanor will offend the jury?
• How well do the critical witnesses remember the facts? How effectively can they communicate those facts?
• What are the backgrounds of the 12 people who end up in the jury box?
• What prejudices and preconceived notions will each juror bring to the table?

Intangible factors like these play a major role in all trials. Every day in this country they help to determine how judges and juries make monumental decisions affecting peoples lives — from changing the custody of children, to transferring fortunes from one person or company to another, to sending people to jail.

What is unique about death penalty cases, of course, is that there these intangibles become the stuff of life and death.

Indeed, their weight is magnified by the inconsistent way the death penalty is imposed. Remember, not all murderers are executed; in fact, only a very tiny percentage is. In 1996, for example, there were 19,650 murders reported in the United States, while only 45 people were put to death.

So how do we choose the few from the many? How do we decide, in Justice Stewart’s words, whom will be struck by lightning? In theory, capital punishment is supposed to be applied only against particularly “bad people” who commit particularly heinous or vicious crimes. The problem is that, like beauty, the stratification of evil tends to be in the eye of the beholder. And while the state does provide some very loose guidance to the jury, in the form of a list of vague “aggravating circumstances,” which will justify (but not compel) the sentence of death, juries and judges are, unavoidably, largely left to sort out the details themselves.

This being true, the ultimate thumbs up or thumbs down decision becomes an essentially subjective one in which intangible factors will always count heavily. Unfortunately, the color of the defendant’s skin tends to be one of the most important of these variables.

If you doubt this and if you are white, do me the favor of playing a mental game. Imagine two similar scenes: In the first, you are walking down a city block around sunset in a questionable part of town and four young white men approach you; the second scenario is exactly the same as the first, but this time it is four young black men who are approaching. Would one scene scare you at least a little more than the other? Be honest.

Most of us, if we are honest, would have to admit that while both scenarios are somewhat frightening, the one with the black youths is more frightening. Now consider that in deciding whether to impose the death penalty one aspect jurors must consider is the likelihood the defendant will be a danger to others in the future. Is it really surprising that while black Americans make up only 13 percent of the population, they represent 43 percent of the people on death row nationally and 67 percent of those awaiting execution in the federal system?

Now, tell me how capital punishment can ever be made to operate fairly.

The death penalty cannot be fixed; it can only be defeated. As Justice Harry Blackmun wrote in his famous 1994 dissent:

“From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored — indeed I have struggled — along with a majority of this court, to develop … rules that would lend more than the mere appearance of fairness to the death penalty. Rather than continue to coddle the Court’s delusion that the desired level fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”

The moratorium movement is, indeed, the best thing to happen in years. But it also has the potential of becoming a trap, which could set the stage for a future waive of executions under a “new and improved” death penalty. In the long tradition of progressive causes, death penalty opponents must decide between holding on to a rigid ideal and accepting — at least for a while — a more popular compromise.

Steven C. Day is an attorney practicing in Wichita, Kansas. His columns appear regularly in PopPolitics.