Death Penalty Showdown

Before they recess for the summer, the nine men and women of the U.S. Supreme Court will decide several cases that raise fundamental questions about the constitutionality of the death penalty as it has been imposed in this country.

For example, would it be cruel and unusual punishment for Virginia to execute a mentally retarded defendant? Did a condemned man in Texas whose lawyer snoozed through the courtroom proceedings get a fair trial? What about a Tennessee man whose lawyer was awake but offered no argument in his defense, none, when prosecutors pushed for a death sentence? Does the 6th Amendment’s requirement of trial by jury permit the trial judge instead of the jury to impose a death sentence, as happens in nine states?

These decisions are likely to vex the majority of the current court, which has been hard-pressed to find a death sentence it is willing to overturn. The justices might decide more easily if they pick up a copy of the report released this week by Illinois’ bipartisan panel commissioned to examine the death penalty.

Gov. George Ryan convened the panel after new evidence cleared 13 individuals who had been sentenced to death in Illinois and have now been freed from prison. These revelations so troubled Ryan, a Republican, that he declared a moratorium on executions until he could be satisfied that capital sentences were imposed fairly and that innocent people would not be put to death. He’s still not satisfied. Nor should he be.

The panel concluded that Illinois must institute sweeping changes, 85 recommendations in all, to improve fairness in how it imposes the death penalty. Among them: Statewide standards, not local practice, should govern when the death penalty is imposed, better defense attorneys should be appointed, the testimony of uncorroborated eyewitnesses or unverified jailhouse informants should not be the basis on which defendants are sentenced to death, and police should videotape their interrogations of homicide suspects. These are basic, common-sense reforms, as applicable to California and the rest of the nation as to Illinois.

Even with such reforms in place, the Illinois panel concluded, there would be no guarantee that an innocent person would not be executed. That finding mirrors other studies. One released earlier this year reviewed 5,000 capital cases and found that state and federal courts had overturned death sentences in 68% of these cases.

In recent months, Justices Sandra Day O’Connor and Ruth Bader Ginsburg have each publicly expressed concern that shoddy police work, incompetent lawyers and overzealous judges are sending innocent people to their deaths. The Illinois report underscores their concerns and it should trouble them and their colleagues.