Death Penalty Article #1

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A BASIC DEATH PENALTY PARADOX THAT IS TEARING THE SUPREME COURT APART

Thursday, Oct. 31, 2002

A Basic Death Penalty Paradox that is Tearing the Supreme Court Apart

By EDWARD LAZARUS*

Currently, in the Washington, D.C. area, prosecutors from Maryland, Virginia, and the

federal government are competing for the privilege of being the first to seek the death

penalty against the beltway snipers. As unseemly as these acts of political one-upsmanship

may be, who can argue that the punishment does not fit the crime?

The sniper duo, after all, has multiple premeditated, cold-blooded murders to answer for.

They terrorized millions of people for weeks on end.

Meanwhile, this week, the writer/lawyer Scott Turow launched his new book Reversible

Errors -- the story of a man wrongly convicted of capital murder and sentenced to death --

by announcing his conversion to death penalty abolition.

A former federal prosecutor, Turow used to consider the death penalty "an ugly necessity."

But since then, Turow achieved the exoneration of a long time resident of Illinois death row,

and has served on the commission to review the death penalty in that state. And now Turow

has come to believe that constructing a fair and accurate system of capital punishment

exceeds the grasp of human wisdom.

This is the fundamental paradox of the death penalty. For some ungodly reason, American

society regularly produces human beings who commit monstrous crimes, the kind of crimes

that leave most of us comfortable with idea of execution in individual cases. Yet when we

look at the death penalty en masse -- that is, when we assess the DNA-validated statistical

certainty of erroneous conviction (not to mention the issues of class and racial bias) -- many

of the same people who would otherwise have been moved to support the death penalty,

feel compelled to condemn the whole system.

The power of this paradox is tearing apart the Supreme Court.

The Way the Paradox Plays Out in the Supreme Court





of the capital punishment system, and those anxious to pursue the legal conclusions to

which those realities point them.

The Shift in the Views of Souter, Ginsburg, and Breyer

The resurrection of this deep divide results from a steady shift in the views of Justices David

Souter, Ruth Bader Ginsburg, and Stephen Breyer. (Justice John Paul Stevens has been a

near-abolitionist on death penalty issues for some time).

What is the source of the shift? For one thing, it is probably significant that none of these

justices had meaningful experience with the death penalty prior to joining the Court. They

are all from jurisdictions where the death penalty long ago withered into non-existence.

Coming to the issue afresh, Souter, Ginsburg, and Breyer spent their first few years on the

Court in a state of relative complacency in the capital cases. That has changed, and

changed profoundly.

After years of inescapable confrontation with the death cases that incessantly bombard the

Court, they have been moved from complacency to active skepticism. Now they vote

repeatedly to limit the scope of the death penalty and re-examine the process by which it is

imposed.

The Resurrection of an Old and Deep Death Penalty Divide

In moving in this direction, the trio of Justices is following an honorable path. Justice Harry

Blackmun came to the Court in 1971 absolutely committed to the constitutionality of the

death penalty. He retired, more than two decades later, a death penalty abolitionist.

Blackmun's transformation did not reflect a moral conversion. Rather, it reflected an

evolution of thinking driven by weekly observation of how police, prosecutors, judges, and

juries make the choice between life and death.

Thanks in part to DNA testing, we now know more than ever about the faults in this system.

To a scientific certainty, we know that people confess to capital crimes they did not commit,

that key eyewitnesses make tragic mistakes, that forensic experts exaggerate their

knowledge, that informants outright lie (perhaps to secure prosecutorial favor).



Yet the system nevertheless relies on such flawed evidence in determining who should die.

In short, it has a flaw at its heart.

We also know -- to as close an approximation of certainty as statistics permit -- that race

plays a powerful and insidious role in meting out death sentences. And we know to a moral

certainty that the single most important factor in whether a defendant receives a death

sentence is the quality of his lawyer.

Should the Supreme Court's View Be Systemic, Or Individual?

All of which returns one to the paradox. Is it the role of the Supreme Court to think about

the snipers, or the system?

For five justices, the public demand for protection and revenge against the evildoers of the

world takes precedence over systemic concerns. And so they have created an elaborate set

of rules to relegate to others the Herculean task of protecting against inevitable human

failure.

For the other four, in contrast, the seeds of doubt have sprouted and are growing daily.

Onto all their desks, the habeas applications and the cert. petitions and the horror stories of

innocent people sentenced to die will continue to stream. Someday, and perhaps not so far

away, the force of experience -- as it did for Blackmun, as it has for Turow -- will surely

carry the day.

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Death Penalty Article #1