Doubts grow over death penalty

America: Just after 2am yesterday in Raleigh, North Carolina, Kenneth Lee Boyd smiled through a glass partition at his daughter-in-law and mouthed a request to take care of his son and grandchildren. A few hours earlier he ate his last meal - a steak, a baked potato with sour cream, salad with ranch dressing, a roll with butter and a Pepsi.

The last words he spoke were: "God bless everybody in here."

By 2.15am Boyd was dead, executed by lethal injection for the murder in 1988 of his estranged wife and her father.

Boyd had become the 1,000th person to be executed in the US since the death penalty was restored almost 30 years ago, gaining more public attention in death than at any time in his life.

By the time you read this Shawn Humphries will have become No 1,001, executed in South Carolina for murdering a store clerk during a robbery on New Year's Day 1994. He asked to be allowed to watch The Wizard of Oz before his death.

A total of 3,400 people remain on death row, but their numbers are growing more slowly than before as death sentences become fewer and executions less frequent. Courts sentenced 125 people to death last year, compared with an average of 290 per year in the 1990s, and the number of inmates executed in 2004 was the lowest since 1996.

Popular support for the death penalty is falling, too, with about two-thirds of Americans supporting it today compared to 80 per cent a decade ago. A growing number of Americans say they would prefer murderers to be imprisoned for life with no chance of parole.

Greater use of DNA evidence has persuaded an ever larger number that some of those who have been executed were innocent.

Calling for more executions is not the vote-winner it was - even in Virginia, which puts more of its citizens to death than any state save Texas. Virginia last month chose as its governor Democrat Tim Kaine, who opposes the death penalty, despite a Republican campaign painting him as soft on crime.

Campaigning against the death penalty is not a vote-winner, however, and governors are slow to grant clemency to death-row prisoners.

California's Arnold Schwarzenegger must decide next week if Crips gang founder Stanley Tookie Williams should be executed as planned on December 13th. Williams murdered four people - a convenience store worker and three people who ran a hotel - but repented in jail of his violent past and worked to dissuade youngsters from joining gangs.

Celebrities including rapper Snoop Dogg and actor Jamie Foxx are campaigning on Williams's behalf, but Schwarzenegger stands to lose little public support if he allows the prisoner to die.

Granting clemency could expose the governor to the charge of weakness - as Bill Clinton calculated when he rushed back to Arkansas from the presidential campaign trail in 1992 to sign a warrant for the execution of Ricky Ray Rector, who was brain-damaged.

Death-penalty opponents have come to depend on the Supreme Court to restrict executions, and two decisions in the past three years have banned the execution of juveniles and the mentally retarded.

The court has also criticised states for failing to ensure defendants on capital charges have adequate legal represent-

ation and ended the Texas epidemic of "sleeping lawyer syndrome", which saw defence lawyers sleeping through a number of death row cases.

In a number of cases, Supreme Court justices have cited foreign law in support of restricting executions. In a speech to the University of Chicago law school last month, US attorney general Antonio Gonzales condemned the justices' use of foreign law to back up their decisions.

"It is one thing for the people's representatives to consider and adopt laws that draw on the experience of foreign nations. It is quite another for unelected judges, charged with determining the will of the people as they expressed it in the constitution, to rely on foreign experience as a basis for rejecting the actions of those elected representatives," he said.

The court is divided over the use of foreign precedent, with conservatives Antonin Scalia, Clarence Thomas and Chief Justice John Roberts strongly opposed to it. If Samuel Alito is confirmed by the Senate, the conservative bloc will be strengthened, making further restrictions on the death penalty less likely.

For those who oppose the death penalty, a more conservative court could be a spur to make their campaign more political, persuading Americans that other forms of punishment can be at least as effective and just.