Wondering Aloud About the Death Penalty Is a Start

Just by noting that “serious questions are being raised about whether the death penalty is being fairly administered,” Supreme Court Justice Sandra Day O’Connor signaled how the questions might be answered. As she told a Minneapolis, Minn., meeting of women lawyers, “The system may well be allowing some innocent defendants to be executed.” Those statistics show that 90 people have been released from death row since 1973, she said.

Her speech, unfortunately, won’t halt capital punishment. But it might prove to be one of the most important events in the effort to reform, if not abolish, the death penalty since Illinois Gov. George Ryan imposed a state moratorium 18 months ago.

O’Connor’s recent remarks are significant because the Supreme Court is one of the main cogs in a death penalty machine that is coming under increasing scrutiny across the political spectrum. The court’s votes on the issue are often close, and O’Connor has long been considered a conservative voice on capital punishment. Her recent remarks clearly indicate that now it will take much more to swing her vote in favor of death.

In 1991, she outraged death penalty opponents with an opinion in which the court refused to block the execution of Virginia convict Roger Keith Coleman. He had a strong innocence claim, but his lawyer filed his appeal one day late. Writing for the court majority, O’Connor expressed fealty to procedural rules, “even when they serve to bar federal review of constitutional claims,” which might have saved Coleman’s life.

She proved to be quite a stickler for timeliness, lest the state be inconvenienced. If a federal court overturns a state court decision, she wrote, “It is the state that pays the price in terms of the uncertainty and delay added to the enforcement of its criminal laws.”

As critical as her court vote is, the significance of her speech reaches well beyond the specific capital cases she will face, includeing at least two this fall. In her speech, O’Connor, in effect, told state and federal officials that if they don’t seriously address some of capital punishment’s grim problems, the court will.

Regrettably, her comments are unlikely to dislodge the Bush administration from its opposition to a federal death penalty moratorium. But she will probably sway some conservative state officials to go the way of Gov. Ryan, a pro-death penalty Republican, and support a halt to the executions until fairness can be guaranteed.

Dianne Clements, president of Justice for All, a Houston-based group that supports capital punishment, is unswayed, however. Commenting on O’Connor’s speech, she said that there is no proof that innocent people have been executed under the death penalty but that there is “overwhelming proof living murderers harm and murder again.”

O’Connor’s statements “reflects an opinion that is based, in my belief, on misinformation,” Clements added. “[The justice’s] comments will be used to unfairly highlight issues that aren’t problems,” including the issues of competent counsel and DNA testing.

The justice’s remarks will hasten and strengthen the reform effort on those points in particular. There already is broad support in Congress for the proposed Innocence Protection Act, which would provide defendants with DNA testing and guaranteed access to competent lawyers in capital cases.

Just a few days before O’Connor spoke, the Constitution Project’s Death Penalty Initiative, based at George Washington University in Washington, which includes supporters and foes of capital punishment, sent a report to the Supreme Court, members of Congress and state legislators containing 18 ways it says capital punishment can be made fairer. Providing competent counsel tops the list.

In Senate testimony, Beth Wilkinson, co-chair of the initiative and one of the lead prosecutors in the Oklahoma City bombing trials of Timothy J. McVeigh and Terry L. Nichols, urged Congress to pass the Innocence Protection Act.

“Insufficient safeguards are in place to assure fairness in the administration of capital punishment,” she said. Now, perhaps, O’Connor is one more safeguard.