By Richard Cohen
Thursday, April 20, 2000 

Tinker, tinker. This is what some political figures want to do with the death penalty. Only after the accused is guaranteed a good lawyer, only after he is granted access to DNA testing, only after every safeguard is in place will these politicians and others breathe easy about capital punishment. Then they will know, to a mythical certainty, that guilty and condemned are one and the same. Who are they fooling?

Maybe themselves. Illinois Gov. George Ryan, a Republican, has suspended executions until he can be assured that only the guilty will be put to death. Since 1977, 13 people have been freed from Illinois' death row on account of DNA testing or other reasons. Arrested by the cops, tried by a jury, sentenced by a judge, reviewed on appeal, they just happen not to have been the people who committed the crimes.

In the Senate, Patrick Leahy (D-Vt.) and Gordon Smith (R-Ore.) have jointly proposed that defendants be guaranteed competent lawyers and provided DNA testing that might prove their innocence. The Rev. Pat Robertson made a similar point when he recently called for a moratorium on executions. Capital punishment, he just noticed, discriminates against poor people who can't afford good lawyers.

Indeed, a movement is afoot to question the death penalty. One reason is a declining crime rate that has enabled politicians to suggest the once-unsuggestible. Mostly, though, the drumbeat of stories about men freed from death row on account of DNA testing has given many politicians pause--but not George W. Bush. Despite 124 executions during his administration, Bush remains a happy and cocky champion of the death penalty. In his state--and, apparently only in his state--mistakes are never made. You have his word on it.

As a death penalty opponent, I should be the last one to scoff at this movement--but scoff I do. These suddenly skeptical politicians should understand that soon they will be off the hook. The men freed through DNA testing were mostly convicted before the procedure was available. Now, though, it is not only available but is being used to prove guilt. Soon there will be no more of those awful stories about men wrongfully convicted, years stolen from their lives and, of course, the guilty person free all that time, presumably to strike again. That era is quickly drawing to a close.

For most crimes, DNA testing is not relevant anyway. A drive-by shooting, for instance, entails no exchange of body fluids, leaves no skin under the fingernails. The only blood spilled is the victim's. If the wrong person is arrested, no DNA test will free him. Only where rape is involved is DNA testing always in order. For reasons having to do with their molecular structure, sperm cells can be isolated from other cells and used to identify the rapist--or exonerate someone falsely accused.

That leaves all other crimes, including most murders. Do the suddenly troubled believe that people are not wrongly convicted in such cases? Do they think that cops do not compel confessions and that district attorneys, convinced of guilt, do not cut some corners, withholding complicating evidence and relying on technicians who sometimes are their drinking buddies?

Are the states, especially Texas (No. 1 in executions), going to turn their systems upside down, appropriate oodles of money so that the impoverished will get an O. J. Simpson-style legal team? Will they punish defense lawyers who don't know what they're doing or who fall asleep while listening to testimony? This happens from time to time, but we are told the defendant is probably guilty anyway. Probably.

This is folly. DNA testing is just the latest tool in mankind's futile march to perfection in capital punishment. Every era has its scientific breakthrough--fingerprinting, blood typing, hair and fiber analysis. Still, mistakes persist. That is human nature. Most mistakes can be rectified. After an execution, that's not the case.

To want to take a life because it is considered the proportionate punishment is understandable. But to play God or be his surrogate in the face of all we know about human error is an expression of titanic arrogance coupled with a casual indifference to human life. No criminals will be deterred. Nothing will be accomplished. The guilty will die, but occasionally so will the innocent. DNA has proved that.

Give it up, gentlemen. You will never get it right. You can DNA test to your heart's content, provide money for crackerjack lawyers, look every prosecutor in the eye and make him cross his heart, but the innocent will, inevitably and with certainty, die anyway. If politicians want to ensure that doesn't happen, all they have to do is abolish capital punishment. There's a test for that, too. It's called political courage.