Maryland Governor Robert Ehrlich allowed an execution to proceed last June. Hardly big news, since the United States has averaged close to 40 executions per year over the last 25 years. What’s notable is that Ehrlich changed the wording in the script handed him by his predecessor—he refused to apologize for the death penalty. In 2002, Maryland’s then governor, Parris Glendenning, ordered a moratorium on all executions until a new study could satisfy him that the death penalty was not being inflicted unfairly. The University of Maryland study concluded that, yes, troublesome racial disparities still existed in Maryland. But Ehrlich was unimpressed, concluding that his own case-by-case review of death sentences could ensure their fairness. 

Maryland was the second state in which a formal moratorium on executions was imposed, and arguments for moratoriums are now being made in other states. To be sure, no state death penalty law is going to be abolished in the lifetime of anyone reading this article. Instead, the public reassessment of the death penalty will continue to take the form of these episodic apologies, or short-term suspensions of its use. Politically, we can’t live without capital punishment. Morally, we have some trouble living with it. 

It’s worth remembering how Justice John Harlan admonished the Supreme Court before it set out on its own experiment in fine-tuning capital punishment. In the 1971 case McGautha v. California, he warned: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” And in Furman v. Georgia the next year, the Supreme Court “apologetically” struck down all existing death penalty statutes because they left juries with largely unconstrained discretion to decide whom to execute, thereby inviting both unpredictable and flagrantly racially discriminatory outcomes. 

But about three-fourths of the states passed new death penalty laws to satisfy the Supreme Court. Then, after a decade under the new laws and 80 or so executions, in the 1987 case of McCleskey v. Kemp, the Supreme Court faced the claim that the new, better death-penalty system had failed. The defendant offered evidence that even the new statutes were racially discriminatory because death sentences were handed down disproportionately often when the victim was white. In his majority opinion, Justice Lewis Powell seemed to concede that racial discrimination probably extends throughout all phases of the criminal justice system. Indeed, it was for that reason that Powell rejected McCleskey’s claim, fearing that to reverse this particular death sentence would be to effectively declare American criminal justice wholly illegal. 

And then Justice Powell’s strange moral concession turned into apology. A few years later, in retirement, he confessed he wished he had voted to reverse in McCleskey. At about the same time, Justice Harry Blackmun dramatically announced that he would vote to reverse any death sentence that came before the Supreme Court in any form. As he put it, he would “no longer tinker with the machinery of death.” 

Various states worried over these questions as well, and new forms of apology emerged. In 1995 New York created a new death penalty law that set the bar so high with legal requirements for a death sentence that it created a de facto moratorium—no executions have taken place in New York in the decade since. Then Illinois stepped into line. Convinced that the prosecutorial system in Illinois was unable to ensure that innocent defendants were not convicted, and bothered by the old concerns about racism and caprice, Governor George Ryan simply commuted the death sentences of all 167 death row inmates. 

The new governor of Illinois has for now sustained the moratorium, but the more interesting new form of apology has been the act of the Illinois legislature. New procedural rules in the Illinois criminal code make New York’s legislative apology seem almost tepid. In what may be the most remarkable provision of the new Illinois law, the state supreme court is allowed to vacate any death sentence if it finds it “fundamentally unjust as applied to the particular case . . . independent of any procedural grounds for relief.” 

So while Governor Ehrlich last month gave an inverted “I’m not apologizing for what we knew all along” version of the McCleskey opinion, in other states we’re likely to keep seeing varieties of apologies over capital punishment. To paraphrase Justice Blackmun, we’re still tinkering. Some judges and lawmakers will continue to demand that we drop the whole matter and apologize for ever trying. Others will apologize for yet another manifestation of error but promise to get things right next time. And Justice Harlan? He might be inclined to mutter a few I-told-you-so’s.

(A version of this essay first appeared in Slate on July 7, 2004.)