A Justice’s Doubts

Justice Sandra Day O’Connor has cast the swing vote on a long list of hot-button issues before the U.S. Supreme Court in recent years. That includes capital punishment, which she has steadfastly supported. Her record and her position give great weight to a speech this week in which she expressed “serious questions” about whether the death penalty is fairly administered in this country. Her new hesitancy, though she was expressing a personal opinion, may also signal a welcome shift on the court.

O’Connor spoke to a women lawyers group in Minnesota, one of 12 states that does not impose the death penalty. “If statistics are any indication,” she said, “the system may well be allowing some innocent defendants to be executed.” She noted that six death row inmates were exonerated and released last year and that since 1973 some 90 inmates have been cleared and set free.

O’Connor’s remarks are not only welcome but timely: A North Carolina case on the docket for next term calls upon the court to squarely decide whether executing mentally retarded people violates the 8th Amendment’s ban on cruel and unusual punishment. In 1989, O’Connor wrote for the majority in a similar case that there was “no national consensus against the execution of the mentally retarded.” Her speech also comes as Congress debates a bill that would prod states to ensure that prisoners facing the death penalty have access to qualified lawyers and to DNA testing. The measure was prompted by revelations of the disgraceful representation that capital defendants in many states routinely receive, including lawyers who were drunk or sleeping during their clients’ trials. A few states--including Texas, where some of the worst abuses have occurred--have begun to impose minimum competency standards on their own. But there is far to go.

The high court, which has largely turned a blind eye to state abuses, bears much of the blame. For example, in a 1993 decision notable for the Catch-22 quality of its logic, the court (with O’Connor joining the majority) held that even new evidence of a defendant’s innocence, evidence the defendant’s lawyer failed to produce at trial, is no reason to overturn a death sentence.

Meanwhile, the assembly line to death chambers rolls on across the nation. When O’Connor joined the court 20 years ago, 856 people were on death row nationwide. Now the total is 3,711. To O’Connor that number, along with the growing number of prisoners exonerated in recent years, some in the final hours before their scheduled executions, is a troubling measure of justice system failure. To us, these figures cast doubt on the very notion that the death penalty can ever be fairly and wisely imposed.