A Change in The Weather On the Way?

By Viveca Novak

The first surprise is that Kerry Max Cook escaped the coolly efficient clutches of the Texas death-penalty system. After 20 years behind bars, 13 of them spent on death row on a murder charge, Cook walked free in 1999 bearing horrifying tales of prosecutorial misconduct. The even bigger surprise is that lawmakers in Texas--which for years has put more people to death than any other state--have been listening to Cook's story and are considering a once unthinkable moratorium on executions.

Texas is not the only place where doubts about capital punishment have taken hold. Twenty of the 38 states with a death penalty have been considering moratoriums. In Congress, lawmakers just a few years ago rushed to expand the list of crimes punishable by death; now they are cosponsoring the Innocence Protection Act, which sets minimum standards for appointed lawyers in capital cases and requires access to DNA tests. Americans may overwhelmingly support the execution of Timothy McVeigh, but a shift is taking place across the country. A recent ABC News/Washington Post poll shows 63% in favor of the death penalty, down from 80% seven years ago. Other polls show that 80% think innocent people have been executed in the past five years.

The change of heart may be most remarkable in Texas, where 40 people were put to death in 2000. So far this year, seven have been executed. Governor Rick Perry, Bush's Republican successor, recently signed a bill giving the accused access to state-paid DNA testing, the strongest such law in the country. A pending bill would add life without parole to sentencing options in capital cases; another would exempt the mentally retarded from capital punishment and improve the quality of lawyers assigned to the cases of indigent defendants. Most striking of all is a bill that would allow Texans to vote on imposing a two-year moratorium on executions. When it was recently considered by a panel of lawmakers, "I heard them saying things like, 'How can it hurt?'" says Texas Defender Service lawyer Maurie Levin. "You would not have heard that in the last legislative session" two years ago. The moratorium bill won't pass this time, but stories like Cook's are helping change minds. After three trials involving prosecutorial misconduct, Cook agreed to plead no contest to a reduced murder charge in exchange for his freedom. Two months later DNA test results came back proving semen found on the victim came from her married lover. Cook is seeking a pardon.

Virginia, which claims second place in executions, is showing signs that it too may be rethinking its death-penalty fervor. Two weeks ago, Republican Governor James Gilmore signed a bill giving inmates access to DNA testing and marginally easing the state's rigid rules of evidence. The U.S. Supreme Court has nudged the state too, overturning three of Virginia's death sentences in the past three years. Next fall the court could make history when it uses a North Carolina case to reconsider whether executing the mentally retarded is cruel and unusual punishment.

If and when it goes forward, McVeigh's will be the first federal execution since 1963. Another, that of Juan Raul Garza for three drug-related murders, is set for June. Attorney General John Ashcroft says he sees no need for a moratorium. He wouldn't be the first to change his mind.

--By Viveca Novak. With reporting by Hilary Hylton/Austin

With reporting by Hilary Hylton/Austin