- December 9, 2001

The Moratorium Gambit

By JACK HITT

No one ever expected the pace of legal executions in America to slow down. The public overwhelmingly favors them. Political leaders long ago realized that the easiest shorthand for being ‘‘tough on crime’’ was to support capital punishment.

 Then came a brilliant new idea – the moratorium. Last year, Gov. George Ryan of Illinois, a death-penalty advocate, announced that the system was broken. Because of bad lawyers, mistaken identifications or corrupt jailhouse testimony, more death-row inmates had been freed than executed during the time Illinois allowed capital punishment. So Ryan postponed any further deaths until a solution could be worked out. The idea caught on, and by the end of this year, attempts to introduce moratorium legislation had been made in 19 of the 38 states with execution chambers.

 As a policy maneuver, the moratorium is a clever tactic pulled off by the anticapital-punishment side. It permits the death sentence to remain legal and in place without executing anyone. And it also allows for a cunning form of civic hypocrisy: the public can still be tough on crime and vent their anticrime fury while also indulging in the emotional virtue of the other side – concerns about the ‘‘fairness’’ in not executing an innocent man.

 Pro-death-penalty folks complain bitterly that the moratorium is a euphemism for abolition. Which, of course, it is. But the moratorium also has its own uses for their side as well. Many conservatives have applauded Ryan, including, for example, the Rev. Pat Robertson. They recognize that recent innovations like DNA testing were uncovering so many railroaded victims in jail that a moratorium might well be the one thing needed to prevent a collapse of our criminal-justice system. They, too, can talk about a concern for fairness while worrying about the increasing visibility of withheld evidence, planted fingerprints and forced confessions.

 At some point, Americans will probably have to decide between being ‘‘ fair’ ’ to those on death row and providing the ‘‘justice’’ demanded by capital punishment advocates. But for now, government officials are content to commision studies

– many, many studies – as both sides save face with talk of fairness while quietly trying to figure out how to gain the upper hand next time.

 The moratorium gambit is such a useful idea that it’s showing up elsewhere in the political sphere. North Korea recently announced an extension of its moratorium on missile testing so that the country can try to attract more trade without appearing to have surrendered to demands from America. Recently, there was talk of instituting an Internet tax. It seemed unfair that Main Street shopkeepers had to charge their customers sales tax while Internet merchants did not. Advocates of digital shopping wailed that such a tax would strangle the Internet baby in its crib. In fact, the deadline for a decision was Oct. 21, 2001. What to do? The Advisory Commission on Electronic Commerce announced a five-year moratorium on the issue.