POINT/COUNTERPOINT: Can The Death Penalty Be Fixed?

We Shouldn’t Tinker With A Broken System

By: Marlene Martin

Two years after Illinois Gov. George Ryan declared a moratorium on executions, a commission appointed by Ryan is preparing to issue recommendations on what to do about the death penalty system.

Among opponents of capital punishment, a debate is growing over whether to propose measures to fix the system, as the anti-death penalty Illinois Death Penalty Education Project did in a recent report, or to insist on abolition, as the Campaign has.

To reflect these two points of view, we print an article by leading death penalty lawyer Lawrence Marshall, and a response by Marlene Martin of the Campaign to End the Death Penalty.

Marlene Martin is the national director of the Campaign to End the Death Penalty.

As usual, Larry, you make the case for why the death penalty can’t be fixed as well as anyone can. I was with you the first four-fifths of the way! But as you might guess, I have to disagree on the last couple of points.

If I understand you correctly, you’re saying that if we’re going to get reforms, then we should try to get the best reforms possible.

I would say two things in response. First, shouldn’t we be the people pointing out that the injustice of the death penalty itself outweighs the impact of whatever changes could be made? Reading your statement, I started thinking back to the civil rights movement. Should Thurgood Marshall have gone into the Brown v. Board of Education case saying that at least separate but equal schools should be made really equal? Or in Montgomery, Ala., would it have been an acceptable solution for the city to buy more buses -- so there’d be enough bus seats to go around, and Rosa Parks wouldn’t have to move to the back? There would still be a fundamental question of justice that isn’t answered.

There are a lot of people on the pro-death penalty side who will talk about how to tinker with the system in order to save it. We should be the ones saying that all the improvements in the world won’t make an unjust system just.

Now, I know one response to this would be that if reforms could save even one life, then they are worthwhile. And I understand the point being made. But I think that it’s not as simple as that. What does it say when you, Larry Marshall, head of the Center for Wrongful Convictions, one of the best-known opponents of the death penalty, puts your name behind reforms to the death penalty system?

The problem is that you don’t control how your name is used. You probably saw the Chicago Sun-Times editorial, where the line of argument went like this: It’s time to settle the moratorium question, here are reforms recommended by the Death Penalty Education Project, which is run by Larry Marshall, who everyone respects. We should make the reforms and get on with executing people.

You haven’t stopped opposing the death penalty. But your support for reforms was used by our opponents to justify their system.

You have to decide how you want to fight this. But I feel like it’s giving up on the struggle before we’ve fully waged it. Again, I think back to the civil rights movement. Those people faced so many challenges where they couldn’t have known the outcome -- they couldn’t have known if what they were doing was going to win or not. But they had to stand up and say it, because they knew it was right.

Your voice is an important one, Larry, and it would mean a lot if you spoke out without qualification that the death penalty has to be ended. To paraphrase former Supreme Court Justice Harry Blackmun, let someone else tinker with the machinery of death.