Little Is Heard but a Frustrated Cry for Finality : Death penalty: In our passion to hurry executions, we no longer view the appellate process as a safeguard against miscarriages of justice.

On the whole, we in the United States consider ourselves to be a civilized nation. We are proud of our democratic heritage and our belief that we are a fair and just society. Yet when it comes to the issue of capital punishment, we often take leave of our senses.

Out of frustration, justifiable anger and fear, our perception becomes clouded. We have a rash tendency to focus in on the offender--to the exclusion of all else. Our cry for the death penalty places the United States in isolation from virtually all of the world’s democracies and in the company of the worst dictatorships. Nonetheless, regardless of its clear lack of benefit, in spite of viable alternatives to its use and in spite of the offensive company with which it places us, capital punishment is a reality in our civilized society.

Whether one agrees or disagrees with capital punishment, it cannot be disputed that death is different from all other criminal sanctions that we impose. The death penalty is final, irrevocable and leaves no room for error. We must be absolutely certain that the criminal defendant is tried fairly and that guilt is determined beyond a reasonable doubt. Under our system of justice, we attempt to ensure this by providing jury trials and a layered process of appeals. We have been admittedly fallible people struggling to attain infallible judgments.

But times are changing. In our frustration over violent crime and in our fervor to exact death as a punishment for murder, our cry has been to shorten or do away with the appellate process for those convicted of murder. In our passion for the death penalty, we no longer view the appellate process as a safeguard against miscarriages of justice. Instead, we view appeals as a delaying tactic employed by “criminals” to thwart our final judgments or as an unnecessary obstacle to justice. Our cries for quicker executions are being heard by our elected officials and our criminal justice system.

With the approval--indeed, the urging--of Chief Justice William H. Rehnquist, the Supreme Court is finding ways to drastically limit or eliminate death-row appeals. In recent decisions, the court has arbitrarily narrowed the grounds on which condemned defendants can appeal and severly limited the means by which such appeals may be pursued. Obdurate procedural rules are being stringently enforced to bar judicial review of legitimate errors, entire appeals and any newly discovered evidence that may come to light in a case. The same court has determined that states need not provide attorneys to represent the condemned on appeal (mental retardation and illiteracy notwithstanding).

Fundamental fairness and justice are no longer our overriding concerns. Only our frustrated cry for finality matters.

Last year a majority of the Supreme Court justices recognized that there is “a high incidence of uncorrected error” in capital cases and that a “substantial portion of these prisoners succeed in having their death sentences vacated in habeas corpus proceedings . . . “ Two years ago, a study in the Stanford Law Review pointed out that since the turn of the century, at least 23 innocent people have been wrongfully executed in this country.

Even under today’s allegedly “reliable” capital punishment statutes, innocent people have been sentenced to death. Just last year the cases of Jerry Bigelow in California, James Richardson in Florida, Timothy Hennis in North Carolina, Randall Dale Adams in Texas, and this year the case of Clarence Brandley in Texas stand as testaments to our fallibility. Their innocence was discovered through totally fortuitous circumstances and not through the normal operation of the appellate system.

In virtually every case, the only reason innocent death-row prisoners had not been executed before their innocence was proved was the “delay” occasioned by pending appeals or post-conviction proceedings on other issues--the very delays condemned by Chief Justice Rehnquist and a majority of the public.

Out of frustration, we seek to circumvent the only process in place that affords any safeguard against miscarriages of justice. In capital cases, where life is at stake, we must ensure that our judgments of death are correct. If we must have a death penalty, then we cannot let our anger and frustration blind us to our own fallibility.