A Supreme Court shocker

Sandra Day O'Connor's criticisms of the death penalty couldn't have come from a more unlikely source.

Published July 4, 2001 10:14PM (EDT)

What makes Justice Sandra Day O'Connor's suggestion to a group of Minneapolis women attorneys Monday that the judicial system "may well be allowing some innocent defendants to be executed" particularly eerie is that it came 25 years to the day after the Supreme Court handed down its Gregg vs. Georgia decision, which reinstated the death penalty after a brief hiatus.

And yet, it might be more surprising that such a speech even came from O'Connor. The Justice, the latest in a growing chorus of conservative death penalty supporters -- some of whom have been severely critical of how it is applied -- has rarely expressed any misgivings about the way the states mete out death sentences. Rather, she has been a key swing vote on numerous of the Court's death penalty decisions, including several in which profound questions of innocence and due process were raised.

O'Connor not only raised concerns over whether the innocent are being executed, she also acknowledged that there have been serious due process questions in at least some capital cases, noting that defendants with more money get better lawyers. "Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used," she said. And she suggested that although DNA testing may be significant in identifying some of those who are innocent (10 of the 96 people released from death row since 1973 established their innocence using DNA), DNA testing alone is no panacea.

Her comments come at a time when opinion polls show that Americans have growing doubts about the death penalty's fairness. One recent poll found that more than 40 percent of the American public think the penalty is not applied fairly, and half believe there should be a halt in the death penalty while a commission studies whether it is applied fairly. A recent ABC News poll found that support for the death penalty dropped to less than half when life without parole was offered as an alternative.

O'Connor's timing also coincides with a so-called Innocence Protection Act under consideration by Congress that would address the need for effective trial counsel, and the need for states to provide adequate funding to underwrite counsel both at trial and postconviction. The bill, authored by Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, addresses some of the most glaring defects in the administration of the death penalty today. With 20 co-sponsors in the Senate and 207 in the House, it would effectively force states to provide DNA testing for death row inmates with plausible claims of innocence, and would provide strong incentives for states to provide decent lawyers in capital cases.

Sen. Orrin Hatch, R-Utah, the ranking Republican on the committee, has already made it clear that conservatives are prepared to oppose any federal effort to force states to provide competent counsel. But O'Connor's comments will be difficult to ignore. Senator Leahy certainly isn't ignoring them. "She got it right by pointing out that DNA tests are only a small part of the problem and that ensuring competent counsel is a bigger part," Leahy said in a statement released Tuesday. "The fact that the court is watching this issue and is troubled by the numbers of innocent people sent to death row should challenge the Congress to offer guidance to those states that are unwilling or unable to fix their criminal justice systems."

Former FBI director William Sessions, who last week called for 18 major reforms to the death penalty in a report released by the Washington-based Constitution Project, says he was "delighted" by O'Connor's comments. "I think it's a very good sign that this kind of attention is being paid at the highest level of our judicial system," said Sessions, a former Texas judge. "I feel that they [the justices] are becoming ever more aware of the fairness requirement."

Why O'Connor chose to make her comments now is not at all clear, although she did take note of the fact that more than 90 people have been freed from death row since 1973. The growing number of innocents released from death rows is, of course, difficult to ignore. In Illinois, where 13 innocent people have been freed, Republican Gov. George Ryan, another death penalty supporter, ordered a moratorium on executions and a comprehensive investigation into the way in which the penalty is administered in his state. Ryan also raised the bar significantly above the current "beyond a reasonable doubt" standard for imposing a death sentence, insisting that he will support the death penalty in the future only if there is a "moral certainty" that no innocent person will be executed. That's a standard even death penalty supporters acknowledge may prove impossible to meet in each and every case.

But O'Connor is surely aware of the growing body of evidence demonstrating that every stage of the judicial process leading to an execution is riddled with problems. Last year the Justice Department released a report that found "indigent defense in the United States today is in a chronic state of crisis," resulting in "legal representation of such low quality to amount to no representation at all, delays, overturned convictions, and convictions of the innocent." A more telling study, authored by Columbia University law professor James Liebman -- "A Broken System: Error Rates in Capital Cases, 1973-1995" -- found that there were such serious errors in 68 percent of death penalty cases that the death sentence or underlying conviction was overturned.

These studies offer a strong rebuke to the notion that the era of the "modern death penalty" ushered in by Gregg has made capital punishment any more fair than it was before. In 1972, the Supreme Court ruled in Furman vs. Georgia that hundreds of state death penalty statutes were unconstitutional because they were applied in an arbitrary and capricious fashion. That ruling created an uproar in the states where public opinion was overwhelmingly in favor of the death penalty. When the Court came back with its opinion in Gregg, it suggested that the states could make their death penalty statutes constitutional and fair by simply making some changes in the way sentences are meted out. "No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines," an optimistic Gregg court opined.

Now, a quarter-century later, the 38 death penalty states have executed more than 700 individuals, and the promise of Gregg seems almost preposterously naive. The notion that the states, which had crafted a myriad of unconstitutional abominations, would suddenly be able or willing to fix "the problem" -- as though they were even conscious of its extent -- has since been contradicted by a mountain of data. Indeed, there is an abundance of evidence to suggest that the death penalty as it is administered today is no less arbitrary or capricious than it was at the time of Gregg.

Five years ago, Justice John Paul Stevens raised concerns similar to those expressed by O'Connor when he told the American Bar Association, "The recent development of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent."

O'Connor, meanwhile, has rarely expressed such misgivings.

O'Connor sided with the Court in the most important and controversial decision on race and the death penalty (McCleskey vs. Kemp), in which a 5-4 majority ruled in 1987 that racial disparities are "an inevitable part of our criminal justice system." The decision, which seemed to send a message that Americans must accept racism as part of the system, in practice has meant that a defendant in a capital case will have a more difficult time demonstrating injury than would someone arguing a simple employment discrimination case.

Last year, O'Connor joined the majority in another controversial 5-4 case (Weeks vs. Angelone) that seemed to pull the rug out from under the most fundamental sentencing reform of the Gregg decision, which said that juries no longer had absolute discretion to sentence someone to death for any reason they saw fit. But in the Weeks case, the majority ruled with O'Connor that the Commonwealth of Virginia could execute a man despite the fact that jurors in his sentencing hearing clearly did not understand that they were entitled to sentence the defendant to life in prison. In ruling that the jury didn't really need to understand that a life sentence was an option, the Court came dangerously close to giving juries the absolute discretion it once found unconstitutional.

In 1989, O'Connor wrote the Court's 5-4 majority opinion in Penry vs. Lynbaugh, which stated that the execution of persons with mental retardation was not a violation of the Eighth Amendment, but that mental retardation should merely be considered by jurors as a mitigating factor in sentencing. At the time only two states prohibited such executions. Since then the tide of public opinion has shifted significantly. This week Missouri became the 16th state to abolish executions of the mentally retarded, and it will be interesting to see if O'Connor changes her views to conform to the change in public opinion when the court revisits this issue during the next term. (Since 1976 the states have executed 35 offenders with mental retardation.)

O'Connor also penned one of the Court's most criticized death penalty decisions in recent memory, denying in 1991 the appeal of death row inmate Roger Keith Coleman whose attorney missed a filing deadline by three days. In a ruling that seemed to give process precedence over life and liberty, the Court concluded that Coleman "must bear the risk of attorney error," that he had no right to present evidence of innocence after conviction and that the State of Virginia could proceed with his execution. In the Court's opinion, O'Connor wrote: "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus" claims -- habeas being the procedure that allows prisoners to petition state and federal courts to determine whether a sentence violates the laws or the Constitution of the United States.

In the case, the Court's 6-3 majority appeared to be saying that state procedures were more important than Coleman's claim of innocence, and the defendant was executed. Justice Blackmun called the execution "an affront to principles of fundamental fairness," adding, "The more the Court constrains the federal courts' power to reach the constitutional claims of those sentenced to death, the more the Court undermines the very legitimacy of capital punishment itself."

One of the leaders of the Court's states' rights, pro-federalism majority, O'Connor is not likely to waver in those commitments. But her comments do seem to send a message to the states that if they are going to be responsible for taking human lives they had better take that responsibility seriously. Unstated is the possibility that if the states don't act, the Supreme Court may move in to usurp some of those prerogatives.

Until now, however, O'Connor has shown little inclination to intervene. On the issue of counsel, where O'Connor seems to have belatedly recognized a potential problem, she wrote what is probably the Court's most damaging opinion from a defendant's point of view, the 1984 decision in Strickland vs. Washington, in which the Court declared, "The government is not responsible for, and hence not able to prevent, attorney errors."

Under the so-called Strickland standard, O'Connor's omniscient state courts have been able to rule that there was no violation of a capital defendant's Sixth Amendment right to counsel even in cases where lawyers have been addicted to heroin or cocaine during a trial, have come to court drunk, have conducted no investigation of their clients' claims or have been unable to cite a single relevant capital case.

In one death penalty case, a lawyer presented no evidence during the penalty phase of a trial and made the following closing argument (quoted in its entirety):

"You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say."

Under the Strickland standard, the defendant's lawyer was deemed competent. The defendant was executed.

In another Texas case, in which the defense lawyer slept through most of his client's trial, the judge found no denial of due process. "The right to be heard," the Supreme Court ruled in 1932, in the famous Scottsboro Boys case, "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." But the Texas court didn't think it essential that defense counsel hear the case, or even be conscious: "The Constitution doesn't say the lawyer has to be awake," the judge ruled.

Under Strickland the determination of what constitutes effective counsel is left not to the federal government or as a constitutional right under the Sixth Amendment and not even to the states per se but, incredibly, to the boys down at the local bar association. "The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance," the Court ruled. "It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions." This is an extraordinary presumption when one considers that the states have been providing incompetent lawyers in death penalty cases for decades with the enthusiastic approval of state and local bar associations that are loath to criticize their own dues-paying members.

Although O'Connor did side with the majority last year in the only capital case to date where the Court said there must be some limits on the atrocious attorneys some states routinely provide to capital defendants, only a small handful of capital cases are heard by the High Court. And absent a ruling overturning Strickland or strong state action imposing serious standards, there can be little doubt that the status quo will prevail for the foreseeable future.

In her speech O'Connor suggested that "perhaps it's time" to require minimum standards. But the fact of the matter is that the American Bar Association has produced reams of standards that local bar associations routinely ignore, and the states executing the most people have yet to embrace either the ABA's standards or any serious standards for effective counsel. Whether states and state bar associations will take this responsibility any more seriously now that O'Connor has weighed in on the issue remains to be seen.

In 1994, Justice Harry Blackmun issued a stinging dissent to the Court's decision not to review the death sentence of Bruce Edwin Collins. "From this day forward, I no longer shall tinker with the machinery of death," Blackmun wrote. "For more than 20 years, I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor." In the end, Blackmun concluded, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."

No one seriously expects Sandra Day O'Connor to become the next Harry Blackmun. In the 20 years since O'Connor joined the Court, the justices have, if anything, become even more committed to their "tinkering." Today, a majority of the court takes the view that American justice, although imperfect, still remains the greatest system this side of the Crab Nebula and can be steadily improved through a process of trial and error, so to speak. O'Connor has certainly aligned herself with those who take this "work in progress" view of the death penalty.

Death penalty critics are left assuming that O'Connor simply became overwhelmed by the accumulating evidence -- and sheer numbers. "With so many cases, perhaps she is thinking the courts can't begin to look at each and every one closely and that maybe they're missing something," says Richard Dieter, director of the Death Penalty Information Center in Washington.

Nevertheless, she is clearly aware of the growing numbers of innocents and cannot remain oblivious to the fact that there are now more than 3,700 people on death row in the United States. In 1981, the year O'Connor was appointed to the court, one individual was executed in the United States. The following year, 1982, there were two executions and in 1983 just five. In the last decade, it reached a high of 98, in 1999.

By Alan Berlow

Alan Berlow is the author of "Dead Season: A Story of Murder and Revenge." His writing has appeared in the The New York Times Magazine, Atlantic Monthly and Harper's.

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