[Deathpenalty] death penalty news----NEW YORK

[Rick Halperin]

July 12



NEW YORK:

Death Penalty Disquiet on High Court Echoes Earlier Time----Anti-capital
punishment advocates hope momentum is on their side, but for now, the
votes on the Court aren't there


Criticism of capital punishment is mounting. States are executing fewer
death row inmates. 2 new Republican appointees have joined the Supreme
Court. But other justices are palpably uncomfortable with the death
penalty.

The year was 1972.

It was the year when the Court suddenly declared the death penalty
unconstitutional in Furman v. Georgia -- a "constitutional earthquake,"
one commentator said at the time.

Today, in the wake of a batch of conflicting Supreme Court decisions on
the death penalty this past term, abolitionists are beginning to draw
parallels with that period more than a 3rd of a century ago, when the
Court's long-standing support for capital punishment dissolved, at least
for a while. (The Court allowed states to resume executions in Gregg v.
Georgia in 1976.)

"The Court is increasingly concerned about error in capital cases -- error
that raises fundamental concerns about reliability," says Bryan Stevenson,
executive director of the Equal Justice Initiative, who has been
representing Alabama death row inmates on appeal for nearly 20 years. "The
doubts and criticisms are beginning to echo the concerns of Furman."

The parallel with 1972 may reflect a good dose of wishful thinking; some
of the decisions of this past term supported states seeking to limit
inmate appeals, and executions have certainly gone forward. In Furman,
five justices viewed capital punishment as unconstitutional, creating a
slim but bankable majority. On the current Court, by contrast, the number
of justices expressing serious doubts may have maxed out at four --
especially since Samuel Alito Jr. replaced Sandra Day O'Connor in January.

In several votes on capital cases, says Kent Scheidegger of the Criminal
Justice Legal Foundation, "Alito seems to be less inclined than O'Connor
to fine-tune state procedures." Scheidegger, a capital punishment
supporter, adds that he is "not concerned" by the qualms of a minority of
justices.

But this term those four justices -- John Paul Stevens, David Souter, Ruth
Bader Ginsburg and Stephen Breyer -- made it clear that their concerns,
especially about the possible execution of the innocent, are deepening.
Their mood guarantees turmoil ahead on the issue, with Justice Anthony
Kennedy in his characteristic role as swing vote.

On June 26 the four joined in a strongly worded dissent in Kansas v.
Marsh, expressing moral disapproval of a state law that imposes a death
sentence even when mitigating and aggravating circumstances are equal.

Such a scheme does not reserve the death penalty for the "worst of the
worst," Souter wrote in the dissent, which quoted Furman. Beyond that, he
said the Kansas law does not take into account the "new body of fact" --
namely, the increase in the number of exonerations of death row inmates.

"In the face of evidence of the hazards of capital prosecution,
maintaining a sentencing system mandating death when the sentencer finds
the evidence pro and con to be in equipoise is obtuse by any moral or
social measure," Souter wrote.

Veteran Supreme Court advocate Donald Verrilli of Jenner & Block says
"that level of disquiet is very significant. It's as close as they have
come to saying the whole enterprise is too fraught with the risk of
error."

The dissent in Marsh puts those four justices "very close to where Justice
Blackmun left off," adds Virginia Sloan, president of the Constitution
Project, which has launched a bipartisan initiative seeking ways to fix
the death penalty system. In his last year on the Court the late Justice
Harry Blackmun, who had dissented in Furman, ended his support for capital
punishment. "I feel morally and intellectually obligated simply to concede
that the death penalty experiment has failed," Blackmun wrote in Callins
v. Collins in 1994.

Washington and Lee University School of Law professor David Bruck, a
longtime advocate in death row appeals, says: "There seem to be 4 justices
who have really had it with the death penalty experiment. But that's not
to say that if they had a 5th vote, they would necessarily abolish it
altogether."

A DEGREE OF INNOCENCE

The new mood of high court doubt about the death penalty has been fueled
by years of revelations about death row inmates being freed based on DNA
and other evidence, says Barry Scheck, a co-founder of the Innocence
Project and a former president of the National Association of Criminal
Defense Lawyers. "That is what is rocking the foundation of the system."

As evidence, Scheck points to several decisions this term -- not dissents
-- in which the Court lent support to exoneration efforts. In House v.
Bell, the Court said that, based on strong DNA evidence, defendant Paul
House should be allowed to proceed with a federal habeas appeal even
though his claim was procedurally defaulted. In Holmes v. South Carolina,
Alito's maiden opinion, the Court struck down an evidence rule that barred
introduction of proof of 3rd-party guilt.

And yet, reflecting the Court's mixed feelings about the death penalty,
Scheck saw firsthand that these seemingly helpful decisions are not going
to bring a swift end to executions.

Scheck invoked both Holmes and House in an eleventh-hour appeal on behalf
of Tennessee inmate Sedley Alley on June 27. Alley claimed new evidence,
including DNA, would prove his innocence in a case of rape and murder in
1985. But the Court denied Alley's petition, and early on the morning of
June 28 he was executed.

"I thought it was a clear case for them to take," says Scheck. "It was the
bitterest disappointment I can remember."

Alley's fate is a reminder that the Court is still far from turning away
from the death penalty. This term the Court also decided Oregon v. Guzek,
upholding a state rule that limits the ability of a defendant to offer
innocence evidence at sentencing. In Brown v. Sanders, the Court upheld a
death sentence even though 2 of the sentencing factors weighed by the jury
were declared invalid.

And then there was the majority opinion in Kansas v. Marsh, which gave
states leeway in how aggravating and mitigating circumstances are weighed.
Justice Antonin Scalia chimed in with a concurrence dismissing Souter's
concerns about executing the innocent.

"It is a certainty that the opinion of a near-majority of the United
States Supreme Court to the effect that our system condemns many innocent
defendants to death will be trumpeted abroad," Scalia wrote. "For that
reason, I take the trouble to point out that the dissenting opinion has
nothing substantial to support it." He proceeded with an uncharacteristic
outside-the-record attack on the innocence movement. "The dissent makes
much of the new-found capacity of DNA testing to establish innocence. But
in every case of an executed defendant of which I am aware, that
technology has confirmed guilt," Scalia wrote. "In identifying exonerees,
the dissent is willing to accept anybody's say-so. It engages in no
critical review, but merely parrots articles or reports that support its
attack on the American criminal justice system."

FUEL FOR INJECTIONS

At a practical level, the death penalty decision that may halt the most
executions -- at least temporarily -- is Hill v. McDonough, issued June
12, which said that challenges to the constitutionality of the lethal
injection method can proceed as civil rights claims under 42 USC 1983. On
July 5 the Court rejected an Arkansas request to dissolve a stay of
execution for Don Davis. Awaiting execution, Davis had challenged the
state's lethal injections in light of the Hill case. Davis never made the
trip to the execution chamber. Similar challenges have halted executions
in Missouri and California.

These delays may be short-lived, as states are devising new chemical
formulas and procedures to make this form of execution less painful. Under
the prevailing three-drug sequence now in use in executions, critics say
that while a paralyzing drug may make death seem painless, it may in fact
be excruciating.

But Jenner & Block's Verrilli, one of the lawyers for Florida inmate
Clarence Hill, says the decision was one more sign of the unease justices
-- including swing vote Kennedy, who wrote the Hill decision -- have with
the death penalty. At oral argument, when there was banter about old age
as an alternative method of execution, Kennedy sternly cut off the
discussion: "This is a death case. It was not that amusing."

Says Verrilli: "The enormous moral gravity of the death penalty, and the
risk of error, are really weighing on him."

Stevenson believes that over time, similar concerns will weigh on Alito
and Chief Justice John Roberts Jr., as well. Neither has had much exposure
to death penalty cases. Fewer than 20 executions have taken place in
Alito's 3rd Circuit in the past 30 years. Roberts handled none on the D.C.
Circuit, though as a private attorney he helped represent a Florida death
row inmate pro bono.

Their support for capital punishment could soften as late-night appeals
come into the high court week after week, Stevenson predicts. "It's not
until you are on the Supreme Court for several years that you get a
feeling for how problematic and vexing the death penalty is. After a while
you get exhausted and say, 'We should be doing better.'"

(source: New York Law Journal)