New York Times


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.