- August 2
Court May Set Death Penalty Limits
By ANNE GEARAN,
WASHINGTON - Almost every week a death row inmate
somewhere in America asks the nation's highest court for a reprieve.
Almost every week the Supreme Court says no, and another execution goes
forward.
Now, as the two female justices publicly express qualms
about the death penalty, the high court seems prepared this fall for the
most extensive reconsideration of the issue in a quarter-century.
The court is far from a head-on confrontation over
whether the death penalty violates the Constitution's prohibition on cruel
and unusual punishment. At least three of the nine justices are firm death
penalty supporters, and none is an abolitionist on the model of such
liberals as the late Thurgood Marshall.
Instead, in choosing to hear some death row appeals and
in unusually blunt public comments, the court is poking around the edges
of the national debate over whether the death penalty is being applied
fairly.
``The justices are not immune to this whole new
atmosphere about the death penalty, the debate that is under way and the
concern about accuracy and fairness,'' said Richard Dieter, executive
director of the Death Penalty Information Center, a clearinghouse that is
critical of the way the death penalty is applied.
The court's interest coincides with the high-profile
releases of 10 death row inmates after DNA tests proved or suggested their
innocence and with public opinion polls that show public unease with some
aspects of American capital justice.
The American Bar Association, opening its annual
meeting in Chicago this week, recommended that states that allow the death
penalty examine the process, from trial through lengthy appeals, to
improve its fairness.
``Every state that imposes the death penalty has a duty
to determine whether its capital punishment system is flawed and, if so,
to eliminate those flaws,'' said Michael Greco, head of the ABA panel that
released a step-by-step guide for reviews of state capital punishment
procedures.
Justice Sandra Day O'Connor startled her audience as well as people on both sides of the
issue when she opened a speech in Minnesota last month by suggesting that
the country may need minimum standards for lawyers representing people
facing the death penalty.
``After 20 years on (the) high court, I have to
acknowledge that serious questions are being raised about whether the
death penalty is being fairly administered in this country,'' O'Connor
said.
A cautious death penalty supporter, O'Connor noted the
approximately 20-fold increase in the number of executions carried out
each year since she joined the court in 1981, and said the quickening pace
has highlighted problems.
``Perhaps most alarming among these is the fact that if
statistics are any indication the system may well be allowing some
innocent defendants to be executed,'' she said.
Justice Ruth Bader Ginsburg said she would support at least one state's proposal to
suspend executions while the process was examined.
``I have yet to see a death case among the dozens
coming to the Supreme Court on eve-of-execution (reprieve) applications in
which the defendant was well represented at trial,'' Ginsburg said in a
speech in April.
More than 700 people have been executed since the
Supreme Court declared in 1976 that it is possible to administer the death
penalty fairly, and allowed states to reinstate the practice.
The justices are now the court of last resort for some
70 or 80 condemned people a year, but death penalty supporter Justice
Clarence Thomas recently told
a St. Louis audience that the court's reviews are never routine.
``I think the concern is there, it's a continuing
concern and a concern heightened by the finality,'' Thomas said last month.
In its most recent term the court voted 6-3 to overturn
the death sentence of a retarded Texas killer. O'Connor wrote a majority
opinion critical of the way Texas authorities handled the case.
The court has agreed to hear appeals from two
additional Death Row inmates in the fall. With drama that does not usually
attend the court's dry, one- or two-sentence pronouncements on most death
penalty cases, the justices stopped the men's executions with only hours
to spare.
One case goes beyond the procedural issues in the
recent Texas case to test the constitutionality of executing the mentally
retarded. The court settled that question with a qualified yes a dozen
years ago. In agreeing to revisit the issue, the court will look at
whether national attitudes have changed.
The justices also agreed to hear an appeal from a
convicted killer whose court-appointed lawyer once represented the victim.
While an unusual question,
the case may offer the court an opportunity to look more widely at the
quality of legal representation in capital cases.
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