Because of DNA technology, that sword now swings both ways.
Texas Gov. George W. Bush, the presumptive Republican nominee for president, demonstrated that Thursday night when he stepped back from his pro-capital punishment stance and spared a convicted rapist and killer so that his guilt can be tested through DNA.
''Any time DNA can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it,'' Bush said in explaining why he suspended the execution of Ricky McGinn.
Political or legal sword?
Bush's move, the first such reprieve he has granted after presiding over 131 executions, was viewed as a victory by capital punishment opponents. ''If you acknowledge DNA can resolve doubts in some cases, that's an argument against (the) death (penalty) in all cases,'' said Richard Dieter, director of the Death Penalty Information Center in Washington, an anti-capital punishment group.
''You're saying . . . we can't be 100% sure even if (a case) has been through the court system,'' he says. ''In effect, you've acknowledged that the system is not perfect.''
Bush aides downplayed that suggestion Thursday. They argued behind the scenes that his action merely reflects the governor's decency and common sense.
However, the elements differ sharply from 12 years ago, when Bush's father campaigned for president as a death penalty supporter and painted his anti-death penalty opponent, Michael Dukakis, as soft on crime. Or candidate Bill Clinton's stance eight years ago, when he approved the execution of a murderer who had severe brain damage after trying to take his own life. To political observers, the message was clear: Pro-death penalty means tough on crime.
The death penalty, opponent Dieter says, has ''always been a much bigger part of the political system than the criminal justice system.'' Politicians could be pro-death penalty while safe in the knowledge that they would seldom if ever have to implement it.
Much has changed. A federal law passed in 1996 speeded up death-penalty appeals, increasing the numbers executed. States have carried out 40 executions this year. That puts them in line to pass last year's total of 98, the highest since capital punishment was reinstated in 1976. ''Once in a while is one thing, but how will people feel when there's one a day?'' asks Clark Kissinger, an anti-death penalty activist in New York City.
A falling crime rate and 87 death-row exonerations, many in the past few years, have cost the death penalty some luster.
''Even in a roomful of conservative Republicans, it's not something you bring up,'' says Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento and a death penalty supporter. ''It's just not pleasant.''
The biggest factor might be DNA.
In addition to its strength--the ability to check the work of prosecutors and juries with scientific precision--DNA carries a downside for any politician who ignores its potential. For the first time, capital punishment opponents might be able to use post-mortem tests to show that an innocent prisoner was executed.
''That would make a (governor) look terrible,'' says defense lawyer Barry Scheck, who filed a civil suit Wednesday that seeks custody of the evidence against McGinn.
''I'm sure that's one of the reasons Bush did this,'' Scheck said. ''He knew we were going to litigate to the end and do those tests, dead or alive.''
How the issue plays out from here is unclear. Doug Hattaway, a spokesman for Vice President Gore, Bush's Democratic rival in the presidential race, said Thursday that Gore supports capital punishment but also favors DNA testing where it can resolve ''reasonable doubt'' about a convict's guilt. However, Hattaway declined to say how Gore, if president, would handle a request for DNA testing from a condemned federal prisoner.
Some Bush supporters say that he can turn the attention that death penalty cases attract to his political advantage.
''What's more compassionate and conservative than a guy who says, 'Yeah, I believe some people deserve this punishment, but I'm going to take advantage of everything in my power to do it right?' '' Rushford asks.
In any case, Bush will have many more opportunities to address the issue. Texas, which has executed 19 prisoners this year, has 11 more executions scheduled before October. Testing in the McGinn case might yield further challenges.
On Thursday, Bush made it clear that he is only interested in testing evidence that would clear McGinn of the rape, not the murder. Clearing McGinn of rape would make him ineligible for execution but would likely lead to a long jail term.
Prosecutors argued that the same man committed both the rape and the murder.
Because of that, McGinn's lawyer, Maurie Levin, says that if her client is cleared of rape, she will argue he must be freed.
