Tweaking Capital Punishment

The death penalty in America has had a roller-coaster existence over the past four centuries. Alternately encouraged and banned, praised and abhorred, it is one of the most contentious issues and practices in our legal system and in our political consciousness.

"Death is different," defense attorneys and prosecutors like to tell jurors in capital cases.

The past 10 years have seen a vast increase in the number of executions in the United States, due mostly to changes in federal and state laws designed to reduce the number of appeals death row inmates receive.

The rapid rate of executions - and the growing number of death row residents - also is due to changes in state laws, which make more crimes capital ones. And as more state laws call for capital punishment, new federal laws also are prescribing executions for drug kingpins, terrorists and other violent criminals.

The increase in capital sentences also has been traced to the reduction or elimination of public funding for defense attorneys for indigent capital defendants. Defendants who need the best representation because their lives are at stake have been forced during the past decade to accept court-appointed counsel, who are less trained, less intelligent, less motivated and thus less likely to offer an adequate defense.

These three changes in the death penalty landscape are due to political consensus - right or wrong - that the death penalty's "eye for an eye" retribution should be part of the system even if the evidence suggests the death penalty doesn't act as a deterrent.

That's the good news for death penalty proponents. For them, it's certainly been a satisfying 24 years in the courts and in the legislative chambers of the country. In 1976 the U.S. Supreme Court held as constitutional a Georgia death penalty statute that set the stage for the validation of other state death statutes.

The ominous news for capital punishment proponents is that recent legal changes to the system have so reduced the safety net on death row that the constitutionality of death penalty procedures and practices may now be in jeopardy.

Like a car traveling ever faster downhill, the quickening pace of executions - predominantly in Texas but in other states as well - has greatly increased the risk of wrongful execution of innocent people - or at least people whose guilt may not have been established beyond reasonable doubt.

So, as has happened many times since the first execution on American soil in 1608, the battle over the death penalty has intensified.

First, technological advances in DNA testing and dogged work by several notable defense attorneys has enabled several death row inmates to prove their innocence shortly before their execution. The discoveries highlighted problems with the justice system and raised the following question: If juries sentence people to death row by mistake, how many other mistakes have been made in capital cases?
Next, a series of articles in The Chicago Tribune highlighted failures in Illinois' death penalty procedures. The series prompted the state's Republican governor, George Ryan, to declare a moratorium on executions in Illinois until the problems are resolved.

The Tribune also investigated the death penalty in Texas in conjunction with George W. Bush's presidential bid and his role in the executions of hundreds of death row inmates while governor.

The paper looked at 131 cases and found that in one third, the lawyer who represented the defendant at trial or on appeal had been or later was disbarred or reprimanded. In 40 cases the defense presented no evidence - or just one witness - during the sentencing phase of the trial, when almost all evidence is admissible.

Meanwhile, a Columbia University report issued after the turn of the millennium demonstrated there are significant problems with eyewitness testimony, which often is the sole basis for capital convictions.

As a result of these developments, recent polls suggest a narrowing majority of Americans still believe the death penalty is a just punishment for the country's most dangerous criminals. And a growing number of Americans are becoming more concerned about the way judges and juries select who should live and who should die.

Although the Supreme Court reviews only the occasional death penalty case - usually to resolve some specific legal dispute - the justices ultimately will be required to look anew at the broader issues involved.

No one seriously suggests that the death penalty itself is in jeopardy of being declared unconstitutional. Although in 1972, the Supreme Court, while supporting the constitutionality of the death penalty, did rule in Furman vs. Georgia that the manner of its application in many states violated the Eighth Amendment of the U.S. Constitution.

But few suggest that the Supreme Court, faced with evidence of problems in death penalty practice, won't soon revise the procedures to better ensure that they protect the rights of defendants.

The Court has tinkered before with the system's ultimate penalty. Indeed, when the court re-instated the death penalty in this country in 1976 in Gregg v. Georgia, it did so only after the state of Georgia separated capital trials into two phases - a guilt/non-guilt phase and then a sentencing phase. The court also required all capital juries to consider "aggravating" and "mitigating" factors during the sentencing phase before deciding whether a capital defendant could be sentenced to death. This model remains the constitutionally-required standard in states practicing capital punishment.

Since 1976, the Supreme Court has set boundaries for death penalty conviction. For example, states cannot seek the death penalty for rape or kidnapping and cannot execute minors under 16, the insane or mentally retarded.

The Supreme Court has allowed prosecutors to require "death qualified" jurrs in capital cases - people who say that they do not have any moral, religious, or personal objections to voting to execute someone. And the justices have required capital defendants to show very specific racial discrimination before allowing them to succeed on appeal for race-based claims.

Name a possible legal issue, in other words, and it's likely the justices at least have had the opportunity to review it in the context of a death penalty case.

If the Court does anything soon, apart from minor adjustments to the Gregg model above, it's likely to reinstate some of the federal appellate review protections it and Congress have taken away over the past dozen years.

At least that way, federal judges will get a chance to undertake a meaningful review of the most dubious state court convictions and death sentences.

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