For the first time in three decades, there is serious and lively national discussion in the US about the death penalty and the manner in which it is applied. Its end is not imminent, and there is no indication that lethal injection, the electric chair and even Utah's firing squad are about to disappear.
But the magnitude of the growing debate was made clear last week when US Supreme Court Justice Sandra Day O'Connor made a highly unusual speech. Widely considered the leading candidate to be the next chief justice, Ms O'Connor told a group of women lawyers in Minneapolis that the system may be allowing innocent people to be put to death.
"Serious questions are being raised about whether the death penalty is being fairly administered in this country," said Ms O'Connor, who is also considered a key swing vote on the court. She noted that more than 90 death row inmates have been exonerated by new evidence since 1973, commenting: "The system may well be allowing some innocent defendants to be executed."
Those remarks resonated strongly with members of a national committee studying the death penalty, composed of supporters and opponents, who believe it is administered unevenly.
The panel recently recommended 18 reforms, including new standards to ensure competent counsel for poor defendants and use of DNA testing when available. They also recommended all states should have the option of a life sentence without possibility of parole.
Ms O'Connor's comments came on the heels of a new study showing a disproportionate number of blacks, 35 per cent of the total, are executed relative to their proportion of the US population, which is only 12 per cent. Since America reinstated the death penalty in 1976, there have been 711 executions. Of those, 579 have been in southern states, some 246 in Texas alone. Seventeen people who committed crimes before they turned 18 have been executed.
Since 1973, 96 on death row have been exonerated, including six last year, according to the Death Penalty Information Center. The courts eventually find errors and overturn 68 per cent of capital punishment cases, according to a Columbia Law School study last year.
Eight states are re-examining their capital punishment systems and the Senate Judiciary Committee has been holding hearings on the Innocence Protection Act. The bill would establish a federal commission to review the capital punishment system.
THERE have always been cyclical swings in public opinion about the death penalty. While awaiting a Supreme Court ruling, there was only one execution in 1967. In 1972, the court ruled that capital punishment as applied in the United States was administered arbitrarily and so was cruel and unusual. But the ban ended in 1976, when the justices approved newly written statutes in Georgia, Florida and Texas.
But Ms O'Connor's speech - and the fact the court will hear arguments on two major death penalty cases in October - have triggered speculation that Americans are questioning its fairness. "It really has been quite amazing - the reaction to Justice O'Connor's comments - editorials around the country are praising her," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
Her comments also prompted a New York Times editorial. "Hard-hitting speeches on the pressing moral and legal issues are a rarity for Supreme Court justices, and there is reason to expect that Justice O'Connor's was meant as a deliberate signal that she is willing to grapple with the unfairness and error in the application of the death penalty," the newspaper said.
The two cases before the court in October are considered definitive. In one, involving a North Carolina man, the court will consider whether executing the mentally retarded constitutes "cruel and unusual punishment." Twelve years ago Ms O'Connor authored the majority opinion in a 5-4 decision on a separate case permitting the execution of mentally retarded inmates.
She wrote at the time that a "national consensus" had not developed against executing those with mental retardation. Only two states then prohibited such executions.
Now 15 of 38 capital punishment states, in addition to the federal government, prohibit executing the mentally retarded. "I think that using the same standard - whether society finds it abhorrent - she will say society now finds it to be cruel and unusual punishment," Mr Dieter said. "I suspect she will not change her opinion as much as she will look around the country and see a lot has happened since her original decision."
While prohibiting executions of the mentally retarded would not end all executions, it could be a critical first step as the nation grapples with the broader issue of whether the state has the right to kill anyone.