Texas produces another case for doubt

MINUTES before the needle was due to go into the arm of Delma Banks last week, inserting into his system the cocktail of drugs that would kill him, the Supreme Court halted his execution in Texas, to consider his latest appeal. Mr Banks was convicted of murder and robbery 23 years ago. But his trial seems to have been such a shambles that a team of former federal judges and prosecutors, led by William Sessions, an ex-director of the FBI, filed a brief with the Supreme Court maintaining that the prosecution suppressed evidence that would have exonerated Mr Banks, paid one hostile witness, and allegedly pressed another into committing perjury. They also claim that the defence lawyer was incompetent.

Mr Banks's case is not an isolated one. Next week the Supreme Court hears oral arguments in the case of Kevin Wiggins, who has been on death row since 1989. The case against Mr Wiggins, convicted of murdering and robbing a 77-year-old woman in Maryland, was so flimsy that at one stage a federal judge not only overturned his death sentence but threw out his murder conviction as well, concluding that "no rational finder of fact could have found Wiggins guilty of murder beyond a reasonable doubt." Despite this, the pros

ecutors appealed and the Fourth Circuit court of appeals reinstated his conviction and death sentence, although the court's chief judge admitted that he could not "say with certainty" that Mr Wiggins had committed the murder.

The issue before the Supreme Court in both cases is not the guilt or innocence of

these men-although there is clearly doubt that either is guilty-but whether the lawyers defending them were competent by the standards which the court set down in a 1984 ruling. In that ruling and subsequent ones, the Supreme Court has struggled to improve the nation's legal system to ensure that innocent people are not executed, as well as to stem the endless flow of death-row appeals that have weighed so heavily on the courts. The cases of Mr Banks and Mr Wiggins seem to indicate that those efforts have failed.

But that may be the wrong conclusion. Alarmed by the prospect of innocent people being executed, politicians have joined America's judges to try to improve the "machinery of death", as one Supreme Court justice once called it. Their efforts may yet produce results.

The best-known example of this was the decision in January of the departing Republican governor of Illinois, George Ryan, to commute the death sentences of 167 death-row inmates to life imprisonment. This followed a three-year moratorium on executions in the state after 13 people awaiting execution had been exonerated. Mr Ryan's successor is keeping the moratorium in place until the state's death-penalty system can be overhauled. Maryland has imposed a moratorium on executions for the past two years. And this month Houston's mayor asked Texas's governor to declare a moratorium on 16 death-penalty cases after the local police

department's crime lab was found to be so

shoddy that it had to suspend DNA testing.

The understandable concern about

miscarriages-1o7 death-row inmates have

had to be released since 1973-masks the fact that, over the past few years, there has been a gradual improvement in the system. Many states now pay more for specialised public defenders in death-penalty cases. Many prosecutors have become more discriminating, calling for death only in the worst cases.

More states now have life sentences without parole as an alternative to the death penalty in murder cases, as well as a requirement that juries be told clearly that this is an option. When offered this choice, reports Richard Dieter of the Death Penalty Information Centre, more juries now seem to be choosing life sentences. The number of death sentences dropped by 50% between 1998 and 2001 and may have fallen still further in the past two years. And reform is continuing. New ideas have been floated, such as imposing the death penalty only in cases where guilt can be determined to a higher standard than normal-beyond any, rather than just a reasonable, doubt.

Because most Americans still support the death penalty in principle, abolitionists have had little choice but to welcome reform, even if it means improving a system they oppose. But can reform alone avoid future cases like those of Mr Banks and Mr Wiggins? Mr Dieter does not think so. "As the death penalty becomes rarer, it will come to seem more arbitrary," he says, "and mistakes will continue to be made." By then, abolition may also appear more plausible to the public, and less controversial. In other words, if America ever abandons the death penalty, it is likelier to be with a whimper than a bang.