Like bodies from the Texas death house, the evidence against capital punishment is piling up. First were the reports of innocent people sentenced to death in Illinois. Then came questions about standards of proof in capital cases and whether the mentally impaired should be subject to execution.
Now comes a federal report, produced by an administration that supports capital punishment, documenting an intensely troubling pattern of racial and regional disparity in the decision to seek the death penalty.
Add to those problems the lack of any evidence that the death penalty deters crime, and all that remains in its support is that in some horrific cases - Timothy McVeigh's comes to mind - execution is the only proportionate response to the crime committed. But even some conservatives are having trouble keeping faith with that justification once confronted with the cold reality that the levers of capital punishment are too often influenced by incompetence, abuse of power and human error.
In some ways, it is no surprise that pursuit of the death penalty varies among regions. The dozen states that have chosen not to enact the death penalty have not had higher homicide rates than states with the death penalty, according to government statistics and a survey by the New York Times.
Some states don't even have a death penalty. Why should it be surprising that they might pursue a federal capital case less frequently? Even the Supreme Court, in allowing local standards to be factored into obscenity cases, acknowledged that the law may be a malleable concept.
But the 14th Amendment to the Constitution demands equal protection under the law. Justice cannot simply be an arbitrary pursuit, especially when execution awaits as its finished product. It is at least suspicious when the latest federal report shows that just five of the 94 U.S. attorney districts accounted for about 40 percent of death penalty cases and, worse, that 72 percent of defendants subject to execution were minorities.
Many politicians, New Yorkers included, have invested tremendous political capital in the death penalty. It will not be easy for them to back away, but the federal government and the states with capital punishment need to declare a moratorium on executions.
The mounting evidence suggests that this is a system that cannot stand under the weight of its inherent and spreading weaknesses. To continue as we are, knowing what we do about the rank inequality of capital punishment, turns justice into a trinket - a bauble that we can point to as proof we are serious about crime, when in fact, it shows us to be something far less.