Death Penalty: A Missed Opportunity For Gore Campaign

20 October 2000

By Stentor Danielson

Texas Governor George W. Bush has left himself wide open in the last two presidential debates. But Al Gore, though looking for a way to stop his slide in the polls, has been unable to attack.

Last Wednesday, Bush was doing well expressing understandable misgivings about hate crimes laws that would make some murders more illegal than other equally heinous ones. Then he turned to the specifics of the case in point - the 1998 racially motivated dragging death of James Byrd in Texas - and fell flat on his face. With an unseemly smile, Bush said, "The three [actually two] men who murdered James Byrd, guess what's going to happen to them? They're going to be put to death." But the Gore campaign didn't seem to notice.

The issue was raised again on Tuesday, when one questioner challenged Bush over the 145 inmates -- many convicted under questionable circumstances -- Texas has executed on his watch. Bush tried to have it both ways, saying "I'm not proud of that," while reaffirming his earlier suggestion that Texas' judicial system (at least with regard to the death penalty) is perfect. Although the spin factories are only just getting warmed up as I write this, I doubt the Gore campaign will make much of this stumble, either.

So why hasn't Gore picked up on this obvious weakness? Even diehard death penalty supporters like Illinois Governor George Ryan have been questioning the system's effectiveness of late. And it's certainly not from a lack of statistics, the lifeblood of a policy wonk like Gore. The Texas Defender Service issued a report Monday (which got plenty of press) detailing the questionable evidence, poor counsel, racial bias and judicial misconduct that have put so many Texans on death row.

Gore's problem is that, no matter how terribly it may be administered in Texas, he still supports the principle of capital punishment. In his response to Bush in Tuesday's debate, he seemed more concerned with reassuring voters (a majority of whom still support capital punishment) that he wouldn't hesitate to end the lives of the worst offenders, rather than hammering Bush the way he did on other issues, from education to taxes. Even his statement of support for such measures as DNA testing seemed to ignore the possibility that Bush might disagree.

We could argue from here to kingdom come over whether the state has the right to take its citizens' lives, and whether the closure for the victims' loved ones outweighs the growing evidence that execution is neither a better deterrent nor cheaper than life without parole. But it is clear that the systematic problems in how the punishment is meted out in Texas require a serious look at reality, not a bland affirmation of idealized principles.

For example, finding defense counsel for Texas' murder suspects scrapes the bottom of the legal barrel. On two occasions, says the Texas Defenders Service, a defense attorney used court time to catch up on some shut-eye. Appeals are halfhearted and almost half introduce no new evidence. The prosecution's evidence, meanwhile, is often misleading or just plain false.

The system also shows a clear bias against minorities, both as victims and alleged killers. The latest report shows that though 23 percent of all murder victims are black, only 0.4 percent of murder convictions are for black deaths. The comparable statistics for white women are one percent of murders and 34 percent of convictions. Meanwhile, 40 percent of death row inmates are black and 22 percent are Hispanic.

Unfortunately, Gore doesn't dare start pointing these things out. It's too fine a distinction to draw in this instant-analysis sound-bite media environment between attacking the system and attacking how the system functions. As soon as Gore opens his mouth to draw attention to that aspect of Bush's record, the Bush campaign will cry "hypocrite" and cite Gore's support of the death penalty. In trying to defend his position, he'll be made to look like a waffler or a panderer. He can afford neither after the Bush campaign's recent successes in raising questions about Gore's credibility.

Gore can't send running mate Joe Lieberman to do it either, even though Lieberman has been on a "Don't Mess With America Texas Truth Tour" pointing out Bush's flawed record in areas such as health care and the environment. Lieberman is also a death penalty supporter and has taken flak for changing his formerly more conservative positions after joining the Gore team.

This is a situation in which even diehard Gore fans could wish for a strong candidacy from Green Party nominee Ralph Nader. Nader could be Gore's proxy in going after Bush, as I'm sure he would waste no time in pointing out the inconsistency of Bush's confidence and Texas' record. And, as a death penalty opponent, he has little to lose in the credibility department. But while polling a measly five percent (at best) nationally, Nader simply can't hold the media's ear and is distracted by his struggles for legitimacy.

Bush told the few Americans able to tear themselves away from the Mariners-Yankees game that he thinks "if it's administered swiftly, justly and fairly, it saves lives." Somebody needs to tell him that none of those adjectives applies in Texas. But Gore will have a hard time doing that after echoing Bush's approval of a well-run death penalty case.

The race is still neck-and-neck, and momentum of late has been in Bush's favor. Gore needs to be able to seize upon any misstep by Bush if he wants to win. The Vice President is at his best poking holes in opponents' positions on issues. It's a shame (or, for those in the Bush camp, a lucky break) that he can't take advantage of this latest blunder.

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