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CounterPunch
November
4, 2002
The Death Penalty
Paradox
Will It Tear Apart the Supreme Court?
by EDWARD LAZARUS
Currently, in the Washington, D.C. area, prosecutors
from Maryland, Virginia, and the federal government are competing
for the privilege of being the first to seek the death penalty
against the beltway snipers. As unseemly as these acts of political
one-upsmanship may be, who can argue that the punishment does
not fit the crime?
The sniper duo, after all, has multiple
premeditated, cold-blooded murders to answer for. They terrorized
millions of people for weeks on end.
Meanwhile, this week, the writer/lawyer
Scott Turow launched his new book Reversible
Errors -- the story of a man wrongly convicted of capital
murder and sentenced to death -- by announcing his conversion
to death penalty abolition.
A former federal prosecutor, Turow used
to consider the death penalty "an ugly necessity."
But since then, Turow achieved the exoneration of a long time
resident of Illinois death row, and has served on the commission
to review the death penalty in that state. And now Turow has
come to believe that constructing a fair and accurate system
of capital punishment exceeds the grasp of human wisdom.
This is the fundamental paradox of the
death penalty. For some ungodly reason, American society regularly
produces human beings who commit monstrous crimes, the kind of
crimes that leave most of us comfortable with idea of execution
in individual cases. Yet when we look at the death penalty en
masse -- that is, when we assess the DNA-validated statistical
certainty of erroneous conviction (not to mention the issues
of class and racial bias) -- many of the same people who would
otherwise have been moved to support the death penalty, feel
compelled to condemn the whole system.
The power of this paradox is tearing
apart the Supreme Court.
The Way the
Paradox Plays Out in the Supreme Court
Only a few years ago, a substantial majority
of the Court's Justices was willing to let the death penalty
operate with an ever shrinking level of judicial oversight. Yet
although the composition of the Court has not changed, that laissez
faire attitude now hangs by a single vote.
Last week, a bitterly divided Supreme
Court refused by a 5-4 vote to reconsider the constitutionality
of the death penalty for juveniles, a punishment that it expressly
countenanced as recently as 1988, but that an increasingly vocal
contingent on the court is beginning to passionately question.
(The case was In re Kevin Nigel Stanford)
Usually decisions not to hear a case
are unaccompanied by any comments from the justices. In this
case, though, the four dissenters signaled their extreme displeasure
in writing. Not only did they criticize the majority for refusing
to reconsider the juvenile death penalty, but they also declared
the "shameful practice" incompatible with a civilized
society.
The Death Penalty
Is Apparently Straining Courtesy Among the Justices
Part of the frustration and anger evident
in the dissent surely stemmed from the fact that, ordinarily,
four votes (equal to the number of dissenters) is sufficient
to grant review of a case. Stanford, however, apparently did
not fall under the usual rule.
Why? Unlike in the typical case, which
comes up to the Supreme Court from the lower courts, here the
death row inmate had applied directly to the Supreme Court for
a writ of habeas corpus that would vacate his death sentence.
Evidently, five votes are necessary to grant review of such a
direct application.
One might have thought that at least
one member of the Stanford majority would have accommodated the
strong views of the four dissenters by agreeing to set the case
for argument and decision on the merits. Should a technical distinction
potentially cost a man his life? Stanford's is a death case,
no matter how it reaches the Court.
And what about the touted current collegiality
of the Justices? Couldn't one have lent a vote when it seemed
to mean so much to the other four -- not to mean the death row
inmate?
It seems that within the Court, the debate
over the death penalty now leaves no room for accommodation or
collegiality. Instead, as was true in the late 1980s, there is
an unbridgeable gap -- between those who do not want to look
again at the troubling realities of the capital punishment system,
and those anxious to pursue the legal conclusions to which those
realities point them.
The Shift in
the Views of Souter, Ginsburg, and Breyer
The resurrection of this deep divide
results from a steady shift in the views of Justices David Souter,
Ruth Bader Ginsburg, and Stephen Breyer. (Justice John Paul Stevens
has been a near-abolitionist on death penalty issues for some
time).
What is the source of the shift? For
one thing, it is probably significant that none of these justices
had meaningful experience with the death penalty prior to joining
the Court. They are all from jurisdictions where the death penalty
long ago withered into non-existence.
Coming to the issue afresh, Souter, Ginsburg,
and Breyer spent their first few years on the Court in a state
of relative complacency in the capital cases. That has changed,
and changed profoundly.
After years of inescapable confrontation
with the death cases that incessantly bombard the Court, they
have been moved from complacency to active skepticism. Now they
vote repeatedly to limit the scope of the death penalty and re-examine
the process by which it is imposed.
The Resurrection
of an Old and Deep Death Penalty Divide
In moving in this direction, the trio
of Justices is following an honorable path. Justice Harry Blackmun
came to the Court in 1971 absolutely committed to the constitutionality
of the death penalty. He retired, more than two decades later,
a death penalty abolitionist.
Blackmun's transformation did not reflect
a moral conversion. Rather, it reflected an evolution of thinking
driven by weekly observation of how police, prosecutors, judges,
and juries make the choice between life and death.
Thanks in part to DNA testing, we now
know more than ever about the faults in this system. To a scientific
certainty, we know that people confess to capital crimes they
did not commit, that key eyewitnesses make tragic mistakes, that
forensic experts exaggerate their knowledge, that informants
outright lie (perhaps to secure prosecutorial favor).
Yet the system nevertheless relies on
such flawed evidence in determining who should die. In short,
it has a flaw at its heart.
We also know -- to as close an approximation
of certainty as statistics permit -- that race plays a powerful
and insidious role in meting out death sentences. And we know
to a moral certainty that the single most important factor in
whether a defendant receives a death sentence is the quality
of his lawyer.
Should the
Supreme Court's View Be Systemic, Or Individual?
All of which returns one to the paradox.
Is it the role of the Supreme Court to think about the snipers,
or the system?
For five justices, the public demand
for protection and revenge against the evildoers of the world
takes precedence over systemic concerns. And so they have created
an elaborate set of rules to relegate to others the Herculean
task of protecting against inevitable human failure.
For the other four, in contrast, the
seeds of doubt have sprouted and are growing daily. Onto all
their desks, the habeas applications and the cert. petitions
and the horror stories of innocent people sentenced to die will
continue to stream. Someday, and perhaps not so far away, the
force of experience -- as it did for Blackmun, as it has for
Turow -- will surely carry the day.
Edward Lazarus
writes about, practices, and teaches law in Los Angeles. His
most recent book is Closed
Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
Lazarus is a columnist for FindLaw
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