Death Penalty on High Court’s Minds

WASHINGTON, Nov 15, (USA TODAY) — A new dialogue about the death penalty appears to be under way inside the U.S. Supreme Court, a debate that could lead to changes in the pace and method of executions.

No one believes the court will put a halt to capital punishment as it did in 1972 — it was reinstated in 1976 — but subtle signs of a significant review are visible.

Recent developments:

  • Twice last month, the court halted executions at the 11th hour by agreeing to consider inmates’ appeals, including one that could end the use of the electric chair.
  • Acting in two other cases last week, two justices exchanged written views that suggested the court is paying attention to growing international objections to capital punishment in the USA.
  • With executions nearing 100 this year, some court observers say the justices are getting tired of the last-minute appeals that force them to make life-and-death decisions with increasing regularity.

”Immersion in the ugly details of the death penalty has an effect,” says Edward Lazarus, a former court law clerk who has chronicled some of the court’s internal divisions over capital punishment. ”There could be a re-alignment under way.”

The high court has always played a pivotal role in the national debate over capital punishment. The Eighth Amendment bars ”cruel and unusual” punishment, a subjective standard that allows the justices to use popular opinion as well as their own views in judging the practice.

Innocents on death row

In the past two decades, reflecting public opinion in favor of capital punishment, the justices generally have ruled against death-row inmates. The court’s majority in favor of the death penalty appears intact.

Recent instances of innocent people wrongly sentenced to death, however, could be adding to justices’ concerns about their personal involvement in ratifying executions, death penalty opponents suggest.

Reporting on results of a study of the 285 death sentences in Illinois since 1976, the Chicago Tribune said on Sunday that many of the cases are flawed by faulty evidence and incompetent lawyering.

”There are a lot of reasons why the Supreme Court could still find that capital punishment is still arbitrary and freakish,” says Richard Dieter of the Death Penalty Information Center, which opposes the death penalty.

That kind of concern led Justice Harry Blackmun in 1994 to oppose execution after supporting it for decades. ”I no longer shall tinker with the machinery of death,” Blackmun wrote just before he retired.

None of the current justices opposes capital punishment in all cases, as Blackmun and Justices William Brennan Jr. and Thurgood Marshall did. Some court-watchers, however, think that as many as four justices — John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg — are voicing concerns that might someday lead to a Blackmun-like conversion.

International pressure

In the cases last week, Breyer cited international treaties and cases from Jamaica, Zimbabwe and elsewhere to bolster his view that the court should examine whether lengthy delay in executing people amounts to ”cruel and unusual” punishment. The court should give ”decent respect to the views of mankind,” Breyer said.

Justice Clarence Thomas dismissed Breyer’s citation of foreign views, but death penalty opponents were encouraged.

”We are urging the defense bar to make increasing use of international standards in their arguments against the death penalty,” says Sam Jordan of Amnesty International. The United Nations General Assembly could vote on an anti-death penalty measure later this month.

Breyer’s views, however, were only a small glimmer of hope to Jordan and others.

In cases Breyer wrote about, as well as in the appeal last month of Nevada inmate Michael Domingues, who was a juvenile when he committed murder, the court majority rejected internationalist arguments.

Some death penalty advocates say the court’s internal debate could lead it toward streamlining capital punishment, not abolishing it.

Justices who are tired of dealing with the death penalty have two remedies: opposing capital punishment or making it more efficient, so that fewer appeals come to the court.

”Sure, they want to make these issues go away,” says Michael Rushford of the Criminal Justice Legal Foundation in Sacramento, which favors the death penalty. ”If they eliminate extended appeals, they won’t get calls late at night.”

One of the cases the court agreed last month to consider could accomplish just that: limiting the ability of federal judges to review state court determinations in death cases.

The future of the chair

A better-known case the court agreed to hear could spell the end of electrocution as a method of execution. After several mishaps during executions in Florida’s electric chair, murderer Anthony Bryan persuaded the court to postpone his execution and look at whether the method is unconstitutionally cruel. The case will be heard next year.

”They’ve opened this door, even if narrowly, so it’s a positive sign,” Dieter says.

For death row inmates, however, re-examination of the electric chair might not make much difference. If electrocution is found unconstitutional, the 11 states that use it will likely switch to lethal injections.

 Source: USA TODAY

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