Bush Hits The Pause Button

By Matthew Cooper and Viveca Novak

You can learn a lot about candidates who must preside over an execution while campaigning for the presidency. Voters got a snapshot of Bill Clinton when he interrupted his New Hampshire stumping to fly back to Little Rock, Ark., in 1992 and oversee the death of a brain-damaged prisoner convicted of murder. Some saw it as the best smell test of Clinton's ruthlessness, others as affirmation that he really wasn't a bleeding-heart liberal.

George W. Bush interrupted his own campaigning last week to make a decision that is also likely to shape voters' perceptions. After presiding over 131 executions--about one-fifth of all the executions since the death penalty was reinstated in 1976--Bush for the first time issued a 30-day stay of execution. The lucky man: Ricky Nolen McGinn, who had been sentenced to die for the 1993 rape and murder of his 12-year-old stepdaughter. Some may see Bush's move as the best evidence that he too will do whatever it takes to get elected, others as a sign the Texas Governor puts the compassionate into "compassionate conservatism."

Bush mulled over his choices for 10 days, but when he finally decided to take this unprecedented step, he moved quickly. On the way to a New Mexico event to talk about military policy last Wednesday, communications chief Karen Hughes told the Texas Governor that a state court had barred new DNA tests for McGinn--removing one of the last roadblocks to his execution the next day. As they rolled along under the hot Southwest sun, Bush called his legal counsel, Margaret Wilson, to review the matter. He peppered her with questions: Was DNA relevant? Could it prove whether McGinn had raped his stepdaughter? It would be conclusive, said Wilson. That was important: if McGinn was guilty of only murder but not rape, then under Texas law he would not necessarily have committed a capital crime. Bush went through with his military speech and then called Wilson back. He would probably recommend a reprieve. The word soon went out to reporters. Message: I care. McGinn, who has long insisted he is innocent of both crimes, was pulled away from the execution chamber half an hour before he was scheduled to die and not too long after he'd eaten what he thought was his last meal: a double cheeseburger and a Dr Pepper.

Bush's decision came in the middle of the most turbulent season in the history of the death penalty since it was restored by the Supreme Court in 1976, a season marked by the strange political marriages it has created. There was a time when only a few liberals and a small group of clergymen fretted over the fairness of the death-penalty system. But ever since famed defense lawyer Barry Scheck and his Innocence Project gained national exposure with their successes in freeing death-row inmates with DNA evidence, a number of prominent conservatives have come forward with their doubts about the reliability of the judicial process. These doubts have also turned up in the polls. "I don't know if McGinn is innocent or not," said Scheck, who has signed on as a volunteer in the McGinn case. "But the DNA will tell us. And with DNA data banks, you can not only exonerate someone but find the person who really committed the crime."

Illinois Governor George Ryan, a Republican, triggered the first major shift in death-penalty politics last January, when he declared a moratorium on executions in his state after no fewer than 13 death-row inmates were freed when new evidence cast doubt on their guilt. Then came Pat Robertson, the religious broadcaster, who called for a national moratorium. Next Wednesday, Democrat Patrick Leahy of Vermont and Republican Gordon Smith of Oregon will introduce a major bill in the Senate that would compel states to use DNA testing in all relevant cases. Also next week a highly touted study led by a Columbia law professor will report an "appalling rate" of error in the capital justice system and make a claim to documenting it state by state.

This sense of unease about a mistake-prone system is also beginning to surface among voters. Although a majority still support capital punishment, the number is down to 66%, from a high of 80% in 1994. But fully 92% support making DNA testing available to those convicted before its widespread use. At the moment, only two states, New York and Illinois, insist on giving inmates on death row access to the new technology. Why the shift? Part of it may be the legacy of the country's lower crime rate--even though murder stats have registered a slight uptick in a few major cities (see box). The flurry of sentences overturned on the basis of DNA evidence is also driving public opinion. Such genetic fingerprints have led to the freeing of 72 inmates, including eight convicted of capital crimes. Other factors include racial and economic disparities in sentencing. In Texas, for instance, two-thirds of those sentenced to die are black or Hispanic, though they make up only one-third of the state population. Then there's bad lawyering: this week attorneys for a Texas death-row inmate, Calvin Burdine, will argue in federal appeals court that he was deprived of due process when his first lawyer slept through much of his trial.

These kinds of judicial atrocities have led to some remarkable conversions. Former Virginia attorney general William Broaddus, a Republican, used to prosecute capital cases. "It was part of our heritage and culture in Virginia," he says. Now he opposes them, after spending time with a death-row inmate he represented in 1996: "When you shake someone's hand, you start thinking." John DiIulio, the conservative crime scholar, has also changed his mind. His beef is that death row is a crapshoot because there is no logical relationship between those who commit capital crimes and those who end up facing death. Of the roughly 600,000 homicides committed in the U.S. since 1976, only 639 convicts have been executed. "It's become a lottery as to who gets killed," he says. "Do the math."

American support for the death penalty has varied. There were 1,289 executions in the 1940s and 715 in the 1950s, and the number fell to 191 by 1976. In 1966 support for capital punishment reached an all-time low, 42%. And the Supreme Court began a series of decisions limiting the scope of the death penalty, effectively outlawing it in 1972. When the court reinstated the penalty in 1976, it mandated that certain procedures, such as separate deliberations for determining guilt and sentencing, were to be followed.

The issue of fairness in the death penalty in Texas--and under Bush--is particularly relevant because of the sheer number of people who have been executed on his watch. (Vice President Al Gore also favors the death penalty, but he has the advantage at the moment of not having to manage a death row.) The nation's largest state, California, has had eight executions since 1976. In the nation's second largest state, Bush has six scheduled this month alone. And even among Texas Governors Bush stands out: during the four years Ann Richards, Bush's predecessor, was Governor, 51 Texans were executed--about half of Bush's just-under-two-a-month pace. While Texas' notoriously weak governorship puts certain constraints on Bush (he lacks, for instance, the power for a sweeping moratorium), he's got some discretion when it comes to the death penalty: he can stay executions, and most important, he appoints Texas' powerful 18-member parole commission. All the current members owe their jobs to him. Until this week, Bush showed no inclination to temper his state's death-sentencing culture. He has scuttled a bill that would have spared the mentally challenged and vetoed one that would have provided better lawyers for indigent defendants. His justice department's website lists prisoners killed as well as their last meals.

"What Bush has to do is appear reasonable and not bloodthirsty," says a Bush adviser. "That puts him just where most Americans are. And that's what he did this week." But the race is likely to be decided in a bloc of the Great Lakes states where the death penalty is not a major civic tradition. Michigan, for instance, has no death penalty, and the state's Republican Governor, John Engler, opposes capital punishment. So does Minnesota Governor Jesse Ventura. There's been one execution in Ohio since 1976, three in Pennsylvania. "The hang-'em-high culture of Texas doesn't play in the Midwest," says pollster Geoff Garin. And among Roman Catholics, considered a swing group, support for capital punishment is lower than among other groups, at least in part because of the church's aggressive stance against it.

This month Bush will face another questionable case, and it could be a tougher call for the Governor. That's because, like the vast majority of criminal cases, it does not involve DNA evidence. Convicted murderer Gary Graham is scheduled to be executed, largely on the basis of a sole eyewitness in a case where there was no physical evidence tying Graham to the crime. Does Bush let the man die on such slim proof? Bush may be able to grant a stay, but when it comes to the shifting politics of the death penalty, there's no reprieve. --With reporting by Hilary Hylton/Austin, Mitch Frank/New York and James Carney/Washington

With reporting by Hilary Hylton/Austin, Mitch Frank/New York and James Carney/Washington