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Justices use facts vs. moral suiasion in death penalty

Last month, the Supreme Court, in unrelated cases, erased two death sentences on a single day. For the court under Chief Justice William H. Rehnquist, an unabashed fan of the death penalty, such results are notable. The two decisions, however, are important for more than their life-sparing results. They seem to mark a small but potentially significant shift away from the intensely ideological approach to capital cases that has been a hallmark of the court for more than two decades toward a more pragmatic approach to the legal limits on the state's power to take human life. Although moralists on both sides of the death-penalty debate may be disappointed, the rest of us should be pleased that the court appears to be taking a long-overdue step toward open-mindedness.

From investigation to trial to appellate review, death cases strain the system like no others. Inside the court, they assault justices almost on a daily basis with examples of alleged incompetent defense counsel, overzealous prosecutions and police misconduct, all advanced by someone convicted of a horrifying crime. From mountains of legal briefs, the images of tortured victims emerge, as do the faces on death row _ usually poor, ill-educated, often mentally impaired, disproportionately brown or black. Thanks in part to the investigative work of journalism students in Illinois and the truth-serum quality of DNA testing, the justices (and the rest of us) now know beyond any doubt that some inmates are innocent and that others, while guilty of noncapital crimes, have been improperly sentenced to death.

The causes for these potentially irrevocable mistakes are no mystery. Under pressure to solve heinous crimes, police and prosecutors sometimes cut corners, lie and hide evidence favorable to the defense. Meanwhile, the defendant's lawyer is often inexperienced, sometimes incompetent or lazy. According to many studies, here, as elsewhere in the criminal law, race discrimination plays an insidious role.

Such flaws in the current system do not necessarily render the death penalty unconstitutional. But surely they require that the justices design and preserve a system that carefully examines the legality of every capital sentence. In truth, however, for more than 20 years, the Supreme Court has given little serious consideration to the actual problems that infect many of the death-penalty cases that crowd its docket. Indeed, in an area of law that calls for the most exacting judicial scrutiny, the justices abdicated serious deliberation in favor of knee-jerk reaction. Court history explains how this happened.

The modern era for the death penalty began in 1976, when the Supreme Court, in Gregg vs. Georgia, ended a four-year ban on capital punishment and declared states could impose death sentences for especially "aggravated" murders _ as long as they created a "rational" process for separating defendants who deserved death from those who did not.

However, Justices William J. Brennan Jr. and Thurgood Marshall were so convinced of the death penalty's immorality that they placed their personal values over the court's legal judgment and refused to accept the decision in Gregg, or the other pro-death-penalty decisions that followed. Instead, as abolitionist lawyers outside the court sought to stymie capital punishment using a variety of clever legal strategies, Brennan and Marshall tried to sabotage the death penalty from within _ both by voting to overturn every death sentence that came before the court and by manipulating internal procedures to delay executions as long as possible.

The abolitionists were remarkably successful. In the five years after Gregg, only five murderers were executed, and several were volunteers. Annual execution totals gradually increased, but throughout the '80s they remained in the 20s, while the number of inmates sitting on death row swelled into the thousands, and the average interval between death sentence and execution rose to more than a decade.

The consequence of this near moratorium, however, was a severe backlash from infuriated conservatives who believed abolitionist guerrilla tactics, rather than legitimate legal arguments, were frustrating what the court had declared to be the right of states to carry out death sentences. In the conservatives' not unreasonable view, by flagrantly ignoring the court's existing death-penalty precedents, Brennan and Marshall were sanctimoniously placing themselves above the rule of law. To parry this perceived abuse of judicial power, conservatives cut back sharply on judicial review of death sentences. They erected a maze of procedural traps for death-row inmates that required courts to deny legal challenges to death sentences, regardless of merit, on a host of technical grounds.

In short, throughout the 1980s, unscrupulous abolitionism met with an equally unscrupulous response. The casualty in this ideological war was any real effort to do justice in individual cases or assess how the death penalty was working in practice.

Nearly a decade has passed since Brennan and Marshall retired, and with the two recent decisions (confusingly both involving defendants with the last name Williams), it appears the passing years may be having a salutary effect. In the 1990s, the parade of improperly obtained death sentences drove Justice Harry A. Blackmun to declare the system of capital punishment incurably flawed.

More recently, the problems endemic to capital cases have made serious skeptics of the newer justices, David H. Souter, Ruth Bader Ginsberg and Stephen Breyer, all of whom came to the court having no experience with the death penalty. Now, at a distance from the memory of Brennan and Marshall's provocations, the swing-vote justices, Anthony M. Kennedy and Sandra Day O'Connor, also seem willing to open their eyes, at least a bit, to the case-by-case realities of the death penalty.

Both Michael and Terry Williams, the defendants given reprieves, were cold-blooded murderers. Nonetheless, in both cases, the legal process went badly awry. At Michael Williams' trial, one juror, when questioned about links to people involved, concealed that she'd been married to the police officer who was the prosecution's lead witness, as well as the fact that the prosecutor had handled her divorce. The prosecutor, despite obviously knowing the juror was misleading the court, kept quiet.

In Terry Williams' case, at the penalty stage, where defense counsel is supposed to present the jury with evidence for why his client should be spared, Williams' lawyer neglected to tell the jury that his client had been abused as a child; that prison officials had officially commended him for admirable conduct in breaking up a drug ring and considered him harmless; and that Williams was borderline mentally retarded. Instead, the lawyer told the jury, "It was difficult to find a reason why the jury should spare Williams' life."

The Sixth Amendment guarantees every defendant the right to an impartial jury, not one with jurors predisposed to favor the prosecution. That amendment also guarantees a defendant the assistance of effective counsel, not one who greases the wheels toward a death sentence. Under the circumstances, reversing the Williams death sentences should have been something of a legal slam dunk.

A few years ago, however, Kennedy and O'Connor almost surely would not have found Terry Williams' lawyer to be constitutionally inadequate or that Michael Williams deserved a hearing for his claim of juror bias. In the Williams cases, the lower courts dropped the defendants into legal traps that O'Connor and Kennedy had actively helped design. Previously, both justices had ignored similar legal challenges based on facts even more compelling than those presented here. Yet, shedding the reflexive anti-abolition of the past, O'Connor and Kennedy reached down and saved these two admitted murderers from death.

To be sure, neither O'Connor or Kennedy have been reborn as death-penalty opponents. Their opinions in the Williams cases are exceedingly narrow in legal scope. But as society at large, confronted with case after case of innocent people wrongly sentenced to death, awakens to the serious problems inherent in the system, it is significant and welcome that a majority of the court, sidetracked for 20 years by Brennan and Marshall's counterproductive moral crusade, is paying attention to questions it should have been focused on all along:

In practice, does our system of capital punishment produce fair trials and just and reliable results? And, if not, can it be made to do so?

On the rigor of this inquiry, and on the answers it provides, the soul of our legal system depends.

The Los Angeles Times

Edward Lazarus, legal correspondent for Talk magazine, served as a law clerk to Justice Harry A. Blackmun.

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