December 2, 2005
The Politics of Punishment
By E. J. Dionne Jr.

WASHINGTON -- Virginia Gov. Mark Warner's decision this week to grant clemency in a death penalty case will be seen in the coming years as a landmark in the nation's debate over capital punishment.

In sparing the life of Robin M. Lovitt, a convicted murderer, Warner was responding not simply to facts that weighed heavily in favor of stopping the execution. He was also operating in a changed political climate. Even supporters of the death penalty now have doubts about how it is administered. Leading conservative Christians are struggling with their consciences over how to square their opposition to abortion with support for death sentences.

Warner, who is considering running for president in 2008, will win courage points from liberals who play a large role in the Democratic primaries. But it takes nothing away from the decency of Warner's choice in the Lovitt case to see it as politically shrewd rather than politically dangerous.

Shifts in public opinion on capital punishment, developments in DNA technology and high-profile news stories about wrongful executions have opened room in a debate that, only a decade ago, seemed closed.

Support for the death penalty hit 84 percent in one poll in the mid-1980s and stood at 80 percent as recently as 1994. Then it began to decline as crime rates dropped in the 1990s. Polling in recent years has generally found support for capital punishment in the 66 percent to 68 percent range.

That is a substantial but less intimidating majority and it leaves space for a governor to break from a lock-step insistence that every death sentence should be carried out. Warner was tipped toward clemency by the fact that a court clerk, without authorization, destroyed DNA evidence that -- in theory, at least -- could have given Lovitt a chance to prove his innocence. Virginia, Warner said in words that will always do him honor, ``must ensure that every time this ultimate sanction is carried out, it is done fairly.''

And Warner was given cover by some very important conservative voices. I never, ever expected to write the following words, but -- gulp! -- here goes: Three cheers for Ken Starr.

Yes, the Whitewater prosecutor and Bill Clinton nemesis who represented Lovitt in his quest for clemency made exactly the right case. ``A compassionate and decent society has to ensure that a death penalty regime is as error-free as humanly possible and as fair as humanly possible,'' Starr told Washington Post writer Donna St. George last March. ``The fact that evidence would be destroyed where additional testing could be done is extraordinary and, frankly, outrageous.'' I can't wait for someone to attack Warner in 2008 on this and have him refer all calls to Ken Starr.

Then there was former Virginia Attorney General Mark Earley, the Republican who lost to Warner in the 2001 governor's race. Earley said ``it would be morally unfair to execute Mr. Lovitt.''

Earley now serves as president of Prison Fellowship Ministries, a group inspired by Christian evangelical and former Richard Nixon lieutenant Chuck Colson. Earley's admirable stand is one reflection of a salutary moral rumbling among religious conservatives about the fairness of the death penalty.

Would that Clinton had enjoyed so much moral guidance (and political help) when, as governor of Arkansas, he refused to commute the death sentence of Ricky Ray Rector. Rector, who had an IQ estimated at 70, was executed on Jan. 24, 1992, during Clinton's Democratic primary campaign.

Clinton's decision was, to put it gently, widely interpreted in political terms. The day after Rector's death, ABC News' Mike Von Fremd noted the ``bashing'' that Democrat Michael Dukakis, a capital punishment foe, had taken on the issue from George H.W. Bush in the presidential campaign four years earlier. With a touch of understatement, Von Fremd said: ``Political analysts say the death penalty is a winning issue with voters, particularly in the South.''

Note that phrase: particularly in the South. It is especially heartening that Warner is the moderate governor of Virginia, not a flaming liberal from a deeply blue state. His state's voters helped Warner do the right thing by rejecting a nasty pro-death penalty campaign against Gov.-elect Tim Kaine, who personally opposes capital punishment.

There can be illusions here. It still takes guts for a politician to oppose the death penalty and Warner, after all, has presided over 11 executions. But on capital punishment, it's not 1992 anymore. One person who clearly knows this is Mark Warner.

© 2005, Washington Post Writers Group

E. J. Dionne Jr.

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