Americans fiercely want the death penalty, and few politicians dare to oppose it. But both seem unwilling to pay the large price, in judicial time and public patience, that common decency requires before running the awful risk of killing someone by mistake. Two capital-punishment decisions at the end of the Supreme Court's last term make that plain.
In Jones vs. United States, a particularly important case because it was the court's first decision interpreting the 1996 federal Death Penalty Act, the court upheld a death sentence even though the jury that voted for death was under a serious misapprehension about the law. The trial judge had refused to tell the jury that if it deadlocked about the sentence, the law required him to impose a life sentence without possibility of parole. After a day and a half of disagreement, the jury voted unanimously for death because some of the jurors who thought life without parole a more appropriate sentence were worried that if they did not agree on death, the murderer might one day be freed. Justice Clarence Thomas, writing for a 5-4 majority, said that the trial judge was within his rights not to tell the jury that this could not happen, because "the very object of the jury system is to secure unanimity," and instructions like the one the defense had requested "might well have the effect of undermining this strong governmental interest."
In Strickler vs. Greene, the court approved a Virginia death sentence although the prosecution had wrongly withheld evidence that the defense could have used to undermine an important prosecution witness. This witness' testimony seemed particularly important, because she claimed to have seen the defendant kidnapping the victim before the murder. Additionally, she described the defendant as taking a leading role in the kidnapping, rather than another man also convicted of the same murder, whom she called "shy guy," and described as hanging back. The jury was entitled to impose a death sentence only if it thought that the defendant did play a leading role, and it might have decided otherwise but for her testimony. Justice John Paul Stevens, writing for a 7-2 majority, conceded that "Without a doubt [that] testimony was prejudicial . . . and discrediting her testimony might have changed the outcome of the trial." But, Stevens continued, a federal court should not order a new trial, even after a death sentence, unless there is not just a chance but a "reasonable" possibility that the outcome would have been different if an error had not been made, and in his judgment, there was not.
These decisions seem wrong and dangerous. The criminal-justice system must be effective as well as just. The public does have an interest, as Thomas said, in juries reaching verdicts rather than disagreeing, and it might be prudent, in some more ordinary cases, for a judge not to give the jury information about the consequences of a deadlock that would make deadlock more likely. The public also has an interest in not paying for retrials just because minor mistakes were made in the first trial, and, in some ordinary cases, it might be appropriate for an appeal court to refuse to order a new trial even though evidence was withheld from the defense if that evidence very likely would not have altered the outcome. But, as the Supreme Court itself remarked in another case, death is "qualitatively" different from other punishments, and what might seem a plausible compromise for the sake of efficiency in ordinary cases seems obscene when the injustice that the compromise risks is lethal.
The court seemed to say as much, in 1976, when it declared the death penalty constitutional, but only when the process adequately protects defendants from arbitrary and discriminatory execution. Many lawyers then expected the court to establish new and more rigorous standards for death-penalty trials--"super due process" some called it--to ensure that any arguments that might save a defendant from execution received the most scrupulous attention. Even that super-due-process would not save the death penalty from serious forms of discrimination that seem endemic to our legal culture. In 1986, lawyers for a black man convicted of murdering a white policeman in Georgia offered the Supreme Court a statistical study of more than 2,000 Georgia cases that concluded people charged with murdering whites were 11 times more likely to be sentenced to death than those convicted of murdering blacks. Money is an even more pervasive source of discrimination: O.J. Simpson's trial made it undeniable that rich defendants who can hire an expensive legal team are much less likely to die.
Still, the Supreme Court might well have developed a special set of rigorous standards for testing death sentences, and encouraged people sentenced to die to seek review, against those standards, in the federal courts. In recent years, however, it has not only failed to develop special standards, but also has watered down existing ones so as to discourage such review. Its reasons are understandable.
Since 1976, dedicated death-penalty lawyers have routinely filed appeal after appeal, motion after motion, to overturn capital sentences, first in state, then in federal courts, culminating in a flurry of writs on the eve or day of execution. They have generally succeeded in finding conscientious judges who issue stays of execution to enable them to study every argument these lawyers make. The appeals, motions and stays have taken up vast amounts of scarce judicial time. Condemned murderers live on while the process grinds on, settling into burgeoning death rows for many years. Much of the public is outraged by the delays, because a death sentence is supposed to mean death soon, not untold years later when the harm to the murderer--we all die sometime--is automatically much less. So in a series of decisions, often by a 5-4 vote, the court has moved steadily to expedite the business of death.
In landmark cases, for example, the court refused to take evidence of strong racial disparities in a state's death-penalty sentences as a reason for invalidating those sentences. It refused to allow death-row prisoners to raise apparently important defenses in a second petition for review if they could have discovered and raised these in their first petition, even if they were, in fact, unaware of them then. It has precipitously quashed stays of execution granted by lower-court judges: Before the execution of Robert Alton Harris in California in 1992, for instance, the court took the unheard-of step of forbidding in advance any more last-minute lower-court stays. Last week's Jones and Strickler rulings were only the latest steps in this long campaign.
The Supreme Court has become impatient, and super due process has turned into due process-lite. Its impatience is understandable, but it is also unacceptable. If Americans insist on the death penalty, they must accept the moral consequences of their choice. Judges must listen, with painstaking and patient attention, to every argument for life that is not plainly frivolous, and if they find any actual mistake in the process that has condemned a human being to death, then they must repeat that process and give him another chance for life. These are inescapable moral demands.
What if we cannot meet these demands? What if we cannot tolerate all the stays and appeals and retrials that a decent respect for human life requires without making the law seem foolish and without subverting the point of a death sentence, which is death not some day but soon? Then we must abandon capital punishment, even if we think it right in principle, because then we cannot have it, even if it is right, without cheating. Judges and legislatures will not outlaw the death penalty in the foreseeable future. But the Supreme Court's recent decisions remind us how great a price we continue to pay, in the moral integrity of our legal process, just in order to hold on to an institution that has been rejected as barbaric and inhumane in almost every other democracy in the world.