A BASIC DEATH PENALTY PARADOX THAT IS TEARING THE SUPREME COURT APART

By EDWARD LAZARUS

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Currently, in the Washington, D.C. area, prosecutors from Maryland, Virginia, and the federal government are competing for the privilege of being the first to seek the death penalty against the beltway snipers. As unseemly as these acts of political one-upsmanship may be, who can argue that the punishment does not fit the crime?

The sniper duo, after all, has multiple premeditated, cold-blooded murders to answer for. They terrorized millions of people for weeks on end.

 Meanwhile, this week, the writer/lawyer Scott Turow launched his new book Reversible Errors -- the story of a man wrongly convicted of capital murder and sentenced to death -- by announcing his conversion to death penalty abolition.

 A former federal prosecutor, Turow used to consider the death penalty "an ugly necessity." But since then, Turow achieved the exoneration of a long time resident of Illinois death row, and has served on the commission to review the death penalty in that state. And now Turow has come to believe that constructing a fair and accurate system of capital punishment exceeds the grasp of human wisdom.

 This is the fundamental paradox of the death penalty. For some ungodly reason, American society regularly produces human beings who commit monstrous crimes, the kind of crimes that leave most of us comfortable with idea of execution in individual cases. Yet when we look at the death penalty en masse -- that is, when we assess the DNA-validated statistical certainty of erroneous conviction (not to mention the issues of class and racial bias) -- many of the same people who would otherwise have been moved to support the death penalty, feel compelled to condemn the whole system.

 The power of this paradox is tearing apart the Supreme Court.

 The Way the Paradox Plays Out in the Supreme Court

 Only a few years ago, a substantial majority of the Court's Justices was willing to let the death penalty operate with an ever shrinking level of judicial oversight. Yet although the composition of the Court has not changed, that laissez faire attitude now hangs by a single vote.

 Last week, a bitterly divided Supreme Court refused by a 5-4 vote to reconsider the constitutionality of the death penalty for juveniles, a punishment that it expressly countenanced as recently as 1988, but that an increasingly vocal contingent on the court is beginning to passionately question. (The case was In re Kevin Nigel Stanford)

 Usually decisions not to hear a case are unaccompanied by any comments from the justices. In this case, though, the four dissenters signaled their extreme displeasure in writing. Not only did they criticize the majority for refusing to reconsider the juvenile death penalty, but they also declared the "shameful practice" incompatible with a civilized society.

 The Death Penalty Is Apparently Straining Courtesy Among the Justices

 Part of the frustration and anger evident in the dissent surely stemmed from the fact that, ordinarily, four votes (equal to the number of dissenters) is sufficient to grant review of a case. Stanford, however, apparently did not fall under the usual rule.

 Why? Unlike in the typical case, which comes up to the Supreme Court from the lower courts, here the death row inmate had applied directly to the Supreme Court for a writ of habeas corpus that would vacate his death sentence. Evidently, five votes are necessary to grant review of such a direct application.

 One might have thought that at least one member of the Stanford majority would have accommodated the strong views of the four dissenters by agreeing to set the case for argument and decision on the merits. Should a technical distinction potentially cost a man his life? Stanford's is a death case, no matter how it reaches the Court.

 And what about the touted current collegiality of the Justices? Couldn't one have lent a vote when it seemed to mean so much to the other four -- not to mean the death row inmate?

 It seems that within the Court, the debate over the death penalty now leaves no room for accommodation or collegiality. Instead, as was true in the late 1980s, there is an unbridgeable gap -- between those who do not want to look again at the troubling realities of the capital punishment system, and those anxious to pursue the legal conclusions to which those realities point them.

 The Shift in the Views of Souter, Ginsburg, and Breyer

 The resurrection of this deep divide results from a steady shift in the views of Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. (Justice John Paul Stevens has been a near-abolitionist on death penalty issues for some time).

 What is the source of the shift? For one thing, it is probably significant that none of these justices had meaningful experience with the death penalty prior to joining the Court. They are all from jurisdictions where the death penalty long ago withered into non-existence.

 Coming to the issue afresh, Souter, Ginsburg, and Breyer spent their first few years on the Court in a state of relative complacency in the capital cases. That has changed, and changed profoundly.

 After years of inescapable confrontation with the death cases that incessantly bombard the Court, they have been moved from complacency to active skepticism. Now they vote repeatedly to limit the scope of the death penalty and re-examine the process by which it is imposed.

 The Resurrection of an Old and Deep Death Penalty Divide

 In moving in this direction, the trio of Justices is following an honorable path. Justice Harry Blackmun came to the Court in 1971 absolutely committed to the constitutionality of the death penalty. He retired, more than two decades later, a death penalty abolitionist.

 Blackmun's transformation did not reflect a moral conversion. Rather, it reflected an evolution of thinking driven by weekly observation of how police, prosecutors, judges, and juries make the choice between life and death.

 Thanks in part to DNA testing, we now know more than ever about the faults in this system. To a scientific certainty, we know that people confess to capital crimes they did not commit, that key eyewitnesses make tragic mistakes, that forensic experts exaggerate their knowledge, that informants outright lie (perhaps to secure prosecutorial favor).

 Yet the system nevertheless relies on such flawed evidence in determining who should die. In short, it has a flaw at its heart.

 We also know -- to as close an approximation of certainty as statistics permit -- that race plays a powerful and insidious role in meting out death sentences. And we know to a moral certainty that the single most important factor in whether a defendant receives a death sentence is the quality of his lawyer.

 Should the Supreme Court's View Be Systemic, Or Individual?

 All of which returns one to the paradox. Is it the role of the Supreme Court to think about the snipers, or the system?

 For five justices, the public demand for protection and revenge against the evildoers of the world takes precedence over systemic concerns. And so they have created an elaborate set of rules to relegate to others the Herculean task of protecting against inevitable human failure.

 For the other four, in contrast, the seeds of doubt have sprouted and are growing daily. Onto all their desks, the habeas applications and the cert. petitions and the horror stories of innocent people sentenced to die will continue to stream. Someday, and perhaps not so far away, the force of experience -- as it did for Blackmun, as it has for Turow -- will surely carry the day.