New York Times

Editorial

An anti-death-penal­ty activist could not have put it more point­ed­ly: If sta­tis­tics are any indi­ca­tion, the sys­tem may well be allow­ing some inno­cent defen­dants to be exe­cut­ed.” Justice Sandra Day O’Connor’s remark­able state­ment on Monday to a group of women lawyers in Minnesota should fur­ther ener­gize the nation’s con­tin­u­ing re-exam­i­na­tion of cap­i­tal pun­ish­ment. Justice O’Connor, whose sup­port of the death penal­ty dates back to hey days as an Arizona leg­is­la­tor, has pro­vid­ed the swing vote to the Supreme Court’s con­ser­v­a­tive major­i­ty in a num­ber of death penal­ty cas­es. If she is hav­ing qualms about the sys­tem, oth­er death penal­ty advo­cates need to take anoth­er look too.

Hard-hit­ting speech­es on the press­ing moral and legal issues are a rar­i­ty for Supreme Court jus­tices, and there is rea­son to expect that Justice O’Connor’s was meant as a delib­er­ate sig­nal that she is will­ing to grap­ple with unfair­ness and error in the appli­ca­tion of the death penal­ty. Next term the court faces two impor­tant death penal­ty cas­es. One address­es the con­sti­tu­tion­al­i­ty of exe­cut­ing the men­tal­ly retard­ed, which Justice O’Connor pre­vi­ous­ly held not to vio­late the Eighth Amendment’s bar against cru­el and unusu­al pun­ish­ment. The oth­er con­cerns an inmate’s claim that he was improp­er­ly rep­re­sent­ed by a lawyer with a con­flict of interest.

Many have spec­u­lat­ed that the rush of states in recent years to ban exe­cu­tion of the men­tal­ly retard­ed may sway Justice O’Connor’s view, under pinned it is by her read­ing of whether there is a nation­al con­sen­sus” against such exe­cu­tions. But her speech sug­gests she is also open to broad­er chal­lenges to the death penal­ty’s fun­da­men­tal fairness.

Serious ques­tions are being raised about whether the death penal­ty is being fair­ly admin­is­tered in this coun­try,” Justice O’Connor said. She went onto note that last year six death row inmates were exon­er­at­ed, bring­ing the total to 90 since 1973. She also deplored the fact that only a few states allow for post-con­vic­tion DNA test­ing, and that Texas defen­dants with the resources to hire their own lawyers are con­sid­er­ably less like­ly to be con­vict­ed than those with appoint­ed counsel.

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. This point is espe­cial­ly impor­tant giv­en the woe­ful legal rep­re­sen­ta­tion afford­ed most indi­gent defen­dants in cap­i­tal cas­es, a prob­lem aggra­vat­ed by the grow­ing reluc­tance of pri­vate law firms to take on such cas­es, as described in today’s Times.

Justice O’Connor’s speech will res­onate in the polit­i­cal are­na. Last week the Senate Judiciary Committee held hear­ings on the Innocence Protection Act, a wor­thy bill spon­sored by Patrick Leahy, the Vermont Democrat who now heads that com­mit­tee, and two Republicans, Gordon Smith of Oregon and Susan Collins of Maine. The bill would estab­lish a com­mis­sion to set nation­al stan­dards for rep­re­sen­ta­tion in cap­i­tal cas­es, and would pro­vide fed­er­al funds for states that agree to com­ply with them, as well as to finance DNA test­ing. Senator Orrin Hatch, the rank­ing Republican, ques­tioned the need for Congressional action. Justice O’Connor’s speech will make it dif­fi­cult for him to main­tain such views.

Public opin­ion polls in the last few years have shown a soft­en­ing in Americans’ sup­port for the death penal­ty, due part­ly to a grow­ing unease that pro­ce­dur­al short­cuts may be lead­ing to the exe­cu­tion of inno­cent defen­dants. That is clear­ly Justice O’Connor’s chief con­cern, as well as the rea­son a num­ber of states are rethink­ing their embrace of the death penal­ty, even as the fed­er­al gov­ern­ment has start­ed exe­cut­ing peo­ple again after not doing so for almost four decades.

This page wel­comes the push for com­pe­tent lawyers and DNA test­ing in cap­i­tal cas­es. But we also hope that the cur­rent nation­al dia­logue will lead to a new con­sen­sus that reform­ing” the death penal­ty, a prac­tice abhor­rent to a civ­i­lized soci­ety, is ulti­mate­ly an unsat­is­fac­to­ry quest. Abolition should be the goal.