Time May Be Ripe for Rehnquist’s Plan for One-Time-Only Death Row Appeals

If Chief Justice William H. Rehnquist had had his way, San Diego murderer Robert Alton Harris would have been executed years ago.

In 1984, the Supreme Court considered and rejected a third challenge to Harris’ death sentence for the 1978 killings of two teen-agers. The California Supreme Court had earlier upheld Harris’ conviction and sentence.

Twice before, lawyers for Harris had appealed the question of his guilt or innocence to the Supreme Court, and they had lost both times. They then filed a third, procedural appeal challenging the constitutionality of his sentence, and again were turned down.

If it were up to Rehnquist, Harris’ third strike would have been his last.

Instead, however, lawyers for Harris returned to the lower federal courts and renewed their procedural appeal on other grounds. This week, for the fourth and probably last time, the high court turned down Harris.

The chief justice is the prime mover behind a proposal to give Death Row inmates like Harris only one chance in the federal court system to challenge the constitutionality of their sentences.

Defense lawyers and foes of the death penalty have denounced the idea, saying it would bring about a “rush to the gallows.”

Senate Debate Set

But the proposal stands a good chance of being approved by the Senate Judiciary Committee next month, staff aides say. Republican attacks on Democratic presidential candidate Michael S. Dukakis during the 1988 campaign have convinced many legislators, they say, that opposing the death penalty can be politically suicidal.

The debate may mark a crossroads in America’s long struggle over the morality and legality of capital punishment.

Since 1976, a solid majority of the Supreme Court has supported the death penalty. Thirty-six states have enacted capital punishment laws, and juries have sentenced more than 2,200 inmates to Death Row.

Yet executions remain rare. In the past 13 years, 121 people have been put to death for their crimes.

Rehnquist and retired Supreme Court Justice Lewis F. Powell, who headed a committee that drew up the proposed changes, say the endless litigation in death-penalty cases makes a mockery of the court system. The problem is made worse, they say, by the two-track aspect of the American court system.

Most criminal cases are tried and appealed in state courts. But in the 1867 Habeas Corpus Act, Congress said state defendants may have their cases heard in federal court if they allege their constitutional rights have been violated.

Congress set no time limits on the filing of these habeas corpus petitions. Nor are there any limits on the number of successive petitions that can be filed.

The typical result, say Rehnquist and Powell, is eight years of litigation contesting the procedural aspects of a trial and the sentence.

“A prisoner may challenge a conviction (in federal court) years after it has become final, and after witnesses and records are long gone,” Powell told a Senate hearing in November. “Claims may be brought again and again. Neither the Constitution nor common sense supports this.”

Rarely is the defendant’s guilt or innocence an issue. Instead, most litigation focuses on the sentencing jury’s decision to give the defendant the death sentence rather than life in prison.

Moreover, when an execution nears, a new, high-caliber defense team usually files an array of eleventh-hour appeals in the state and federal courts. They also petition the U.S. Supreme Court to stay the execution while the new appeals work their way through the system.

On occasion, a prisoner is executed while an appeal raising a significant issue is awaiting a hearing in the federal courts.

“Surely it would be a bold person to say that this system could not be improved,” Rehnquist told the American Bar Assn. last year. His proposal, he said, would assure that “the federal courts give careful consideration to the constitutional claims of the capital defendant, but also bring that consideration to a final conclusion within a reasonable period of time.”

Under the Rehnquist-Powell proposal, a murderer whose conviction and death sentence had been upheld by the state supreme court would be given a publicly paid lawyer and six months to file an appeal on all aspects of the case.

The defendant would get “one full and fair review” in the federal courts, Powell said. “When this review has concluded, the litigation should end.”

Critics say this proposal may sound simple and fair, but it is neither. The real problem, they say, is the poor quality of trial lawyers for murder suspects, particularly in the deep South.

“In Alabama, you get a minimum-wage lawyer” if you are poor and charged with murder, said Steven Bright, director of the Southern Prisoners Defense Committee. If the lawyer fails to raise a legal challenge during the trial or in the state appeal, the federal courts will often refuse to hear that issue.

Critics Say Plan Unfair

“Whether a person is put to death for a crime should turn on a principled determination, . . . not on whether a lawyer filed the proper piece of paper on time,” Bright said.

Charles Sevilla, the San Diego lawyer who appealed the Harris case, said the Rehnquist proposal “will just accelerate the speed of the conveyor belt into the gas chamber. It won’t do anything for the quality of justice in this country,” he said.

In response to Rehnquist, Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) and the American Bar Assn. have come up with competing proposals, both of which would require states to assure that Death Row inmates have better lawyers from the trial all the way to the Supreme Court.