Retiring Justice Sandra Day O’Connor’s evolv­ing skep­ti­cism about cap­i­tal pun­ish­ment has played a sig­nif­i­cant role in a num­ber of key deci­sions regard­ing the death penal­ty through­out her 24 years on the U.S. Supreme Court. During pub­lic appear­ances in recent years, she has often men­tioned her con­cerns about inno­cence and the need to pro­tect a cap­i­tal defen­dan­t’s con­sti­tu­tion­al right to ade­quate rep­re­sen­ta­tion. In a 2001 speech she stat­ed, ​“Serious ques­tions are being raised about whether the death penal­ty is being fair­ly admin­is­tered in this coun­try. If sta­tis­tics are any indi­ca­tion, the sys­tem may well be allow­ing some inno­cent defen­dants to be executed.” 

From the bench, O’Connor was a key vote in the 2002 rul­ing to ban the exe­cu­tion of those with men­tal retar­da­tion and she has been among the U.S. Supreme Court Justices who have crit­i­cized Texas courts and the U.S. Court of Appeals for the 5th Circuit. In 2004, she ques­tioned the Texas Court of Criminal Appeals for uphold­ing a death sen­tence despite a rul­ing by the U.S. Supreme Court that the instruc­tions giv­en to jurors had been con­sti­tu­tion­al­ly flawed. In that case, she wrote that the rul­ing ​“has no foun­da­tion in the deci­sions of this court” and said the judges had relied on ​“pre­cise­ly the same ​‘screen­ing test’ we held con­sti­tu­tion­al­ly inad­e­quate” in a pre­vi­ous deci­sion.

Capital defense attor­ney George Kendall, who has worked on many cas­es before the U.S. Supreme Court dur­ing O’Connor’s tenure, not­ed, ​“As time went on, she became less enam­ored with the death penal­ty. She took a case-by-case approach. Her instincts were large­ly quite con­ser­v­a­tive, but like many peo­ple in the past 5 or 6 years, she began to have ques­tions and to see that there are a lot of prob­lems with the admin­is­tra­tion of the death penal­ty.” (Houston Chronicle, July 4, 2005). See Supreme Court, New Voice, Innocence, and Representation.

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