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Big setback, and new ire, on death penalty

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Most Americans still believe in the death penalty. But a rising number of them are asking: Is it used fairly?

The answer, increasingly, seems to be no.

Academic reports have revealed persistent bias. Media outlets have publicized cases of error-prone defense attorneys, as well as the potential for new DNA and other evidence to overturn death sentences.

This weekend, in the most dramatic move of all, Illinois Gov. George Ryan emptied out the state's entire death row by handing out reduced sentences to all 156 inmates. That marks the largest commutation of such sentences since the United States Supreme Court overturned the death penalty in 1972. And it almost certainly ensures that the number of inmates on death row will fall this year for only the second time in a quarter century.

"What is going to happen is a national dialogue on this," says Hugo Bedau, professor emeritus at Tufts University and a death-penalty opponent. "We're going to be forced to talk about the facts of the death penalty."

Some of those facts are already having an effect in the courtroom: There are hints that prosecutors and juries in capital cases are treading more carefully.

Still, any proposals to fundamentally change the system threaten to founder on the shoals of America's post-Sept. 11 mentality - one in which terrorists, as well as serial killers, should pay a high price for their deeds.

"When you have these very horrible incidents, people say: 'Yeah, we have to get rid of these people' - more in sadness than in vengeance," says Bruce Fein, a Washington attorney and death-penalty supporter who served in the Reagan administration.

Yet mounting evidence of breakdowns in the system have given even some ardent death-penalty supporters pause. Since the Supreme Court reinstated the death penalty in 1976, Illinois, for example, has executed a dozen inmates. But the probings of a group of reporters, investigators, attorneys, and Northwestern University journalism students have freed 13 other death-row inmates - either because they were innocent or there were significant flaws in how they were convicted.

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