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Blind Justice
Tim Francis-Wright

8 July 2001

Supreme Court Justice Sandra Day O'Connor worried in public last week about the administration of the death penalty in America. In a speech on 2 July, she remarked that "the system may well be allowing some innocent defendants to be executed." She noted that 90 death row inmates had been exonerated in the last 28 years. While DNA testing would help some claims of innocence, not every state allowed DNA testing after a conviction. Finally, she remarked that "perhaps it's time to look at minimum standards... and adequate compensation" for appointed attorneys in death penalty cases. I applaud Justice O'Connor's concern about the fairness of the death penalty. I regret that her concern has come after almost 20 years as a Supreme Court Justice.

Current death penalty laws in the United States conform to the guidelines set forth by the Supreme Court in Gregg v. Georgia. That decision that established procedures for the death penalty not to be cruel and unusual punishment under the Eighth Amendment to the United States Constitution. But that decision did not reverse two basic principles and a host of secondary truths.

First, executions cannot be undone. Most Americans favor capital punishment in spite of this immutable fact. Perhaps the most hideous irony of politics is that many Americans distrust the ability of the government to do any thing of consequence correctly, until and unless the issue is literally life-and-death.

Second, assuming that the death penalty could be applied only to the guilty, it still does not make American society better off. It effectively removes heinous criminals from society, but life imprisonment has the same effect. But it effectively reduces society to the level of the convicted murderer, by making every citizen a murderer in kind.

Discrimination. A 1976 Supreme Court decision ensures that some discrimination in application of the death penalty is not only acceptable, but also necessary. Woodson vs. North Carolina established that the death penalty would violate the Eighth and Fourteenth Amendments if it could be applied at a jury's discretion to every murder conviction. Accordingly, imposition of the death penalty must by precedent take into account mitigating and aggravating factors.

Several studies have shown that imposition of the death penalty falls disproportionately on poor nonwhite defendants. Perhaps every citizen of the United States is somehow free of any racial, sexual, or other discriminatory thought. It still seems unreasonable that the mitigating and aggravating factors that a jury must weigh are not correlated with race, sex, or class. It should not surprise anyone, therefore, that imposition of the death penalty falls hardest on the poorest defendants, on defendants with prior criminal records, and on defendants who are black or Hispanic.

Representation. Court-appointed lawyers in many states are woefully paid and are unmotivated to represent murder defendants aggressively. In some cases, the lack of motivation reaches absurd levels. In Texas, for example, Calvin Burdine's lawyer slept through major portions of his capital murder trial. The Texas state court system found nothing wrong with the proceedings. His conviction still stands, pending a review by the full panel of the United States Court of Appeals.

Politics. In four states--Alabama, Delaware, Florida, and Indiana--judges may overrule a jury's sentence of life in prison and impost the death penalty. Judges who are elected on law-and-order platforms have a built-in incentive to put politics ahead of justice.

Medicine, Since 1992, the American Medical Association has allowed doctors only one role at executions, to certify that the condemned prisoner actually is dead. In many states, however, physicians must do more. Often, they must "pronounce" prisoners to be dead by monitoring their vital signs. Sometimes, state laws governing lethal injections make them participate in more overt ways. Any real involvement by a physician in an execution is a violation of the Hippocratic Oath that proscribes doing harm to anyone in the performance of one's duties.

Two recent cases show that Justice O'Connor has had ample opportunity to put her doubts in writing. These cases could have helped defendants in the instant cases, or defendants who could have relied on precedent. In an opinion in 1993 (Herrera v. Collins), the United States Supreme Court ruled that potential proof innocence was insufficient grounds for a new trial, if state law considered that new evidence to be untimely. Six of the nine justices, including Sandra O'Connor, rejected Leonel Herrera's bid for a trial that could clear his name and spare his life.

Justice O'Connor expressed a scintilla of doubt in the opening sentence of her concurring opinion (although she couched its impact by using a total of four negatives). She wrote, "I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution." Unfortunately, she argued later in her opinion that Herrera was not an innocent man: as a convicted murderer, he was "legally guilty"! Apparently, Justice O'Connor thought in 1993 that an innocent person could not be convicted of a crime, never mind be executed.

In 1999, the Supreme Court rejected the appeal of Exzavious Gibson, whose post-conviction hearing in Georgia was remarkable for its unilateral nature. Gibson could not afford a lawyer, so he represented himself. He called no witnesses and presented no evidence at the hearing. Yet, the Supreme Court refused to hear the case. Apparently, Justice O'Connor was not so concerned in 1999 about innocent prisoners as to convince three of her colleagues that Gibson's hearing was so inadequate as to prevent any consderation of his innocence.

Even though behind the pace of 1999's 98 executions, the 37 executions through mid-June of this year exceed the totals for 18 of the 25 years since 1976, according to Amnesty International. These numbers are in spite of the moratorium established in Illinois by Governor George Ryan, after several death-row inmates were found to be innocent. In their Presidential debates, neither George Bush nor Al Gore could bring himself either to call for a moratorium on federal executions or to encourage other states to do the same.

It is shameful that Justice O'Connor, who has considered hundreds of desperate appeals over the years, is only now realizing that the death penalty may be fatally flawed. It is equally shameful that the majority of Americans have yet to come to that realization.

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