Must We Rush the Executioner? : Death Penalty: Courts make mistakes more frequently than we like to admit. We must be sure before we drop the pellet.

Judge Stephen Reinhardt sits on the U.S. 9th Circuit Court of Appeals.

A committee headed by former Supreme Court Justice Lewis F. Powell Jr. and composed exclusively of federal judges from the South has recommended drastic limitations on the rights of condemned people awaiting execution. In California alone, there are more than 200 who may be affected by these changes in our fundamental procedures.

The Powell committee report, which Chief Justice William Rehnquist submitted directly to Congress in a manner that drew unprecedented criticism from most of the chief judges of the U.S. Courts of Appeal, would severely restrict the use of the writ of habeas corpus in capital cases. Speedy executions, rather than fairness and due process, would be the order of the day.

Are we really so desperate to execute people that we can no longer afford them the full rights of review that condemned people have always had? Are we really willing to sacrifice certainty for speed where life is at stake? Are we really prepared to execute people who have been convicted or sentenced in violation of the provisions of the Constitution?

If not, someone had better tell the Congress before it enacts the Powell committee recommendations. Legislation that would accomplish just that is now on a special fast track, which would permit Congress to act before the lessons of common sense and history can make their weight felt.

The issue is not, as some seem to believe, whether we should turn criminals loose simply because courts make technical errors or admit improper evidence. It is whether in capital cases we can afford to ignore fundamental constitutional violations that may affect the jury's decision to find the defendant guilty or to impose a death sentence instead of life imprisonment.

If the error is not of constitutional magnitude or if it does not affect the verdict, the federal courts will not intervene.

The writ of habeas corpus, no less, is under attack by the chief justice and the committee he appointed. One might expect to hear the alarm bells ringing throughout the land. Yet only the American Bar Assn. has thus far shown any signs of springing into action. Its litigation section has issued a report calling for greater, rather than lesser, protections for the rights of those facing death at the hands of the state. The Bar Association itself is scheduled to consider the matter early next year, shortly before Congress is expected to act.

To understand the significance of these attempts to limit federal-court review of state-imposed death sentences, one need only look back over a recent seven-year period. During that time, almost 75% of the orders of execution issued by state courts were found to be in violation of the Constitution. But for federal review and the writ of habeas corpus, a substantial number of people would have been executed in contravention of the fundamental principles set forth in our Bill of Rights.

In some cases, the defendant may have been innocent; in others, only the fairness of the sentence may have been at issue. Either way, the lesson is simple: Courts make mistakes--even in capital cases. And they make them more frequently than we like to admit. This elementary fact should lead us all, supporters and opponents of the death penalty alike, to one uncontroversial conclusion: We must be absolutely sure that we are right before we drop the pellet or pull the switch. We must not deprive any human being of a fair chance for judicial review if a reasonable argument exists that reversal of his or her death penalty is required by our laws.

This is the very principle that the Powell committee squarely and explicitly rejects. The committee's recommendations reflect an understandable public frustration over increasing crime, the narcotics threat, the slowness of the judicial process and our general inability to control our national and individual destinies. We want to strike out--to act--to see tangible results, at last.

What is more tangible and final than an execution? And what is more difficult to understand than why it takes the courts so long to decide that a mass murderer should be executed? So, the Powell committee looked for ways to speed up the death-penalty process. And it found a simplistic solution. Limit the use of the historic writ of habeas corpus in capital cases. Afford condemned prisoners fewer rights than persons convicted of lesser offenses. Prohibit successive habeas petitions in capital cases, unlike in all other felonies. Adopt a rule that if a capital prisoner's lawyer fails to raise an issue in the state proceedings, the prisoner is barred from ever raising it in federal court. Adopt another rule that any issue not raised the first time the case is presented to a federal judge is, except in rare instances, forever waived.

These rules might be helpful and reasonable if all lawyers were perfect. But lawyers, like judges, are not. Lawyers make mistakes, too. And the Powell committee's view is that it is the condemned man (or woman) who should pay for those mistakes--with their lives.

The Powell committee's report is not entirely without redeeming social value. For example, it encourages states to adopt procedures for the appointment of counsel for indigents who want to file habeas petitions in capital cases.

On the other hand, it reaffirms the rule that prohibits condemned prisoners from asserting constitutional rights that the Supreme Court had not acknowledged as of the time the crime was committed. How much fairer and more sensible the view of the bar association committee: "We believe it is unacceptable to sanction executions under procedures that have been declared unconstitutional."

The Powell committee met only six times. It was composed exclusively of judges from places in which executions are common. It heard from no witnesses, accepting only written comments. Yet it felt sufficiently confident of its views to recommend the most radical curtailment of the writ of habeas corpus in our history.

It may take years before all the consequences surrounding adoption of the Powell committee recommendations become evident. Meanwhile, executions will certainly increase--but at what cost to our Constitution?

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