Bill Clinton's Death Penalty Waffle --

Bill Clinton recently spared Juan Raul Garza's life -- at least for a little while. On August 5, Garza -- a drug trafficker convicted of ordering the murder of three people -- would have become the first person executed by the federal government in almost 40 years. Though few question whether Garza is guilty, Clinton wants to give him time to request clemency under new guidelines, which are still being drafted.

Some Republicans have suggested that Clinton did this to make it easier for Al Gore to attack George W. Bush as the murderingest politician (137 served, and counting). But the real story here may be how Bill Clinton has morphed from an opponent of the death penalty to an avid supporter to a near agnostic -- and the lessons it may offer for execution's opponents.

Moral Opponent

In his early days, Clinton opposed the death penalty. And while he and his wife Hillary Rodham Clinton were both teaching at the University of Arkansas Law School, she wrote an appellate brief that helped free a mentally retarded man from execution. "Clinton was against the death penalty," says Arkansas attorney Jeff Rosenzweig, who, like Clinton, grew up in Hot Springs, Arkansas. "He told me so."

As a young governor, Clinton was reluctant to facilitate the executions permitted by his state. Prosecutors often had to pressure Clinton to schedule inmates' executions, according to the Legal Times. By not doing so, he was postponing their deaths indefinitely.

Clinton eventually signed a policy that effectively set the execution dates for him. Nevertheless, he was no Robespierre: During his first term as governor, he freed 70 people from jail, 38 of whom were convicted of first-degree murder. But when one of those murdered again a few months after his release, Clinton suffered a humiliating defeat for re-election to a Republican who accused him of being soft on crime. When Clinton ran again, he publicly apologized for freeing the convicts and vowed not to do so again if re-elected. Since 1983 he has granted only seven requests.

Political Supporter

By his second term as governor, Clinton had begun morphing into a death penalty supporter. In 1988 he expressed his support quite mildly, saying that while "many fine people" believed executions to be immoral, "that's just not my view of it." He also told The Arkansas Democrat-Gazette, "I can't say it's an inappropriate punishment for people who are multiple murderers and who are deliberately doing it and who are adjudged to be sane and know what they're doing when they're doing it."

During this time, Clinton told the media that capital punishment would probably deter "clearly premeditated crimes" but then told a high school class that there was no compelling evidence that it did so. (Incidentally, this ambivalence was not unique to Clinton -- one of his predecessors, Governor Orval Faubus, actually organized fundraisers for inmates to appeal their death sentences even as he sent them to the electric chair.)

Gradually, Clinton became a more willing executioner. Days before an execution, a lawyer from the American Civil Liberties Union approached Clinton at a tree-planting ceremony. Shaking Clinton's hand, the lawyer confronted him, saying, "You won't remember the tree, but you'll remember the people you executed." Clinton parried, "I remember the people that they killed, too."

On the national stage, something happened that would cement Clinton's support for the death penalty for years to come. Asked during the 1988 debates if Michael Dukakis would support the death penalty if his wife Kitty were raped and murdered, Dukakis stared into the camera, squinted into the lights above, and then said, "I think there are better and more effective ways to deal with violent crime." The answer ruined Dukakis. Bush relentlessly charged Dukakis with being soft on crime, and his loss changed the landscape of what Democrats could say about the death penalty.

Clinton had learned his lesson. By 1992 the presidential candidate was insisting that Democrats "should no longer feel guilty about protecting the innocent." To make his point, he flew home to Arkansas mid-campaign to watch the execution of Rickey Ray Rector, a 40-year-old black man convicted of killing a black police officer. After shooting the cop, Rector shot himself in the head and damaged his brain.

Though courts decided Rector was mentally competent to be put to death by lethal injection, evidence suggests otherwise. Rector's prison guards called him "the Chickman" because he thought the guards were throwing alligators and chickens into his cell. He would grip the bars and jump up and down like an ape. On the night of his execution, Rector saved the slice of pecan pie to be eaten before bedtime, not realizing his death would come first. He also told his attorney that he would like to vote for Clinton in the fall.

Also executed during the campaign was Steven Douglas Hill, who was convicted of shooting a state police investigator after he and an accomplice escaped from a state prison. Hill confessed to the crime, but his partner Michael Cox has insisted for years that it was he, not Hill, who pulled the trigger. In all, Arkansas executed four people on Clinton's watch.

The executions made Clinton's wish come true. Never again would anyone seriously accuse him of being soft on crime. Never again would anyone challenge his status as a New Democrat.

As president, Clinton continued to endorse the death penalty. In 1994 he pushed a crime bill through Congress that allows prosecutors to seek the federal death penalty in 60 more crimes than they could previously. Later, in his campaign against Bob Dole, Clinton ran a TV ad in which he recommended that in addition to putting more cops on the streets, "expand the death penalty. That's how we'll protect America."

In 1996, prompted by the Oklahoma City bombing, Clinton supported antiterrorism legislation that included an (ultimately unsuccessful) provision that would have curtailed the writ of habeas corpus -- the power of federal courts to second-guess state courts on whether or not a fair trial had been given. The law would have allowed inmates only one federal death row appeal filed within one year of exhausting all the possible state appeals.

Empirical Agnostic

Quite recently, however, Clinton has changed his position. Expressing some concern that the death penalty was being distributed unequally across racial and geographic lines, his White House has asked the Department of Justice to do a statistical survey. And Clinton promised to delay Garza's execution -- a move that contrasts sharply with the bloodthirsty persona he adopted almost two decades ago.

Clinton still officially supports the death penalty and so far has ignored the calls for a national moratorium on federal executions. In fact, when Senator Russell Feingold sent Clinton a letter asking him to suspend federal executions and review the death penalty, the letter went unanswered. Nevertheless, it is important to ask why -- in the heat of his vice president's campaign -- this poll-driven president would risk backing off the very position that secured his reputation as an electable moderate.

Political Sea Change

There are several factors giving Clinton wiggle room -- and they center on the fact that recent attacks on the death penalty have been formulated not on principle, but on process.

The first empirical argument is the racial disparity. Of the 21 people on federal death row, 17 are black, Asian, or Hispanic. The second, and even more promising, argument is that the specter of putting an innocent person to death is too large. Columbia University released a study that showed that two-thirds of death penalty cases appealed between 1973 and 1995 were so flawed they had to be overturned. In Illinois -- where Republican Governor George Ryan recently suspended the death penalty to investigate the fairness of the process -- 13 death row inmates have been freed and 12 executed since 1977. In Ryan's state, college students were able to dig up evidence exonerating inmates on death row. Since 1993 the availability of DNA testing has also cast much doubt on the certainty of guilt in convictions.

Third -- rather than arguing against the death penalty as a whole -- opponents have highlighted particular cases. "I don't think that much ground will be gained by sort of generically attacking the institution of the death penalty," Democratic strategist Scott Segal told The Washington Times. "Democrats will gain ground by pointing out specific instances."

Finally, backing off the death penalty has become safer since crime levels dropped so precipitously over the past decade. With the decline in crime, the support for the death penalty has fallen too. Polls place current support at 66 percent, down from 80 percent in 1994. Support falls to only 52 percent if an alternative punishment such as life imprisonment is offered as an option, according to Gallup polls.

But there's a better measure than polls: President Clinton's chameleon-like approach may give observers the best reflection of the political environment of all. And if Clinton is softening his death penalty stance, opponents can be sure that now is the moment to redouble efforts to chip away at execution's foundation -- for they may be able to topple the whole institution.