Second Thoughts

Wednesday, July 4, 2001

SUPREME COURT Justice Sandra Day O'Connor, in a speech Monday in Minneapolis, expressed anxiety about the death penalty, noting that "serious questions are being raised about whether the death penalty is being fairly administered in this country." Justice O'Connor's words on this subject come at a propitious time -- just as the Senate is considering legislation that would begin to address the problem of wrongful convictions, including the problem of quality of death row counsel.

The court has yet to release a copy of the justice's remarks. But an account in the Minneapolis Star-Tribune quotes her as noting the alarming number of death row inmates who have been exonerated in the years since capital punishment was reinstituted and the failure of many states to pass laws to protect innocents from execution. "If statistics are any indication, the system may well be allowing some innocent defendants to be executed," she said. The justice went on to describe the noxious influence of poor defense lawyers on capital cases -- arguing that those who can afford to hire their own lawyers are less likely to be convicted and less likely, if convicted, to be sentenced to death. "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," the justice is reported to have said.

This is plainly right -- and particularly powerful coming from a justice who has hardly been friendly to death row appeals over the years. She has often voted in the Supreme Court's 5 to 4 majority in cases restricting post-conviction review. Justice O'Connor once wrote an opinion holding that the court could not entertain the serious innocence claims of a Virginia death row inmate -- who was later executed -- because his lawyers had missed a state court filing deadline by a day. Her opinion began: "This is a case about federalism." For Justice O'Connor to be expressing second thoughts indicates just how far the debate has moved and promises to move it further still.

Her words may be interpreted as a message to legislatures that they must improve the system or risk having the court do it for them. We would welcome either route to reform of the status quo, in which flawed state proceedings are reviewed leniently by federal courts. In the end, though, the only way to alleviate all the problems with the death penalty is to get rid of it. As Justice O'Connor told her audience, "Minnesota doesn't have [a death penalty], and you must breathe a big sigh of relief every day."

Copyright © 2001 The Washington Post Company

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