The Dying Death Penalty?

Sunday, February 11, 2007; Page B02

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.

The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoriums on the death penalty; executions in New York are on hold after the state's death penalty law was declared unconstitutional in 2004; 11 states (including, most recently, Florida and Tennessee) have effectively barred the practice because of concerns over lethal injection; and 11 more are considering moratoriums or repeals.

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.

The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 we executed 98 people, and in 2006 that number dropped to a 10-year low of 53. Whereas America steadily condemned about 300 prisoners a year to death through the 1990s, that number has declined by more than half and reached a low of 114 in 2006. Public support also seems to be faltering. A Gallup poll last year showed that two-thirds of the country still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 percent) to capital punishment (47 percent) for the first time in 20 years.

The new uncertainty over capital punishment ranges from queasiness over the methods of execution to concern that we are executing innocents. Lethal injection, the preferred method of execution in 39 of the 40 states that permit capital punishment, is particularly fraught with problems.

In December, then-Gov. Jeb Bush of Florida ended executions following one in which it took the prisoner 34 minutes to die and he suffered chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail used may simply mask agonizing pain before death. And state courts are also increasingly bothered about the proper role of physicians -- often mandated by law to supervise the lethal-injection process over objections by medical associations and ethics boards.

There are numerous other reasons for our growing doubts about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence that has shown that "a substantial number of death sentences have been imposed erroneously," the fact that elected judges face disproportionate pressure to impose capital punishment, and the problem of "death-qualified" jurors (those who oppose capital punishment are barred from sitting on capital cases). For these and other reasons, many Americans have begun to worry that the death penalty in this country is not reserved for the "worst of the worst," but for the poorest of the poor and those whose trial attorneys later prove to have been asleepest at the switch.

The Innocence Project, a nonprofit legal clinic associated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, says there have been 194 post-conviction DNA exonerations. A wrongful-executions study by Hugo Bedau and Michael Radelet of contends that from 1900 to 1991, 416 clearly innocent people were sentenced to die. And studies about the racism that taints the entire system are unequivocal.

In recent years the Supreme Court has also shown concern about the death penalty. In an article published last year, Duke University professor Erwin Chemerinsky observed that in the final years of the William H. Rehnquist Court, the justices showed a marked tendency to overturn death sentences. Chemerinsky speculated that "a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States" and that, as a result of the revelations by various investigators, "the reality of innocent people facing execution has had a profound effect on the Justices."

So in the early years of the new century, the court handed down surprising decisions outlawing executions of the mentally retarded and of those who were juveniles at the time of their crimes, and refining the tests for the ineffectiveness of counsel. Several justices also voiced concerns off the bench: Stevens, Ruth Bader Ginsburg and Sandra Day O'Connor each spoke publicly and passionately about flaws in the capital system.

But, largely as a result of a change in the court's composition, that trend may now be ending. Just as a few states are defiantly expanding their use of the death penalty. And there is some reason to fear that some justices don't share the burgeoning sense that the machinery of death in this country is broken. One is the new chief justice, John G. Roberts Jr., who, when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

One case last term involved a man convicted of a rape and murder, who later produced DNA evidence raising serious doubt that he was the culprit. The court ruled 5 to 3 that this new evidence warranted a new hearing. But Roberts led the dissenters, who felt it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he "was actually innocent."

In another death-penalty case from 2005, then-Justice O'Connor agreed with the court's liberals that trial counsel was ineffective. That decision reversed an opinion by Samuel A. Alito Jr., then a judge on the U.S. Court of Appeals for the 3rd Circuit, that would have denied relief. The signals are still mixed. In a different case, the entire court allowed death-row inmates to pursue a civil claim against lethal injection.

But also last term, Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David H. Souter, who had written in a dissent about exonerated innocents. Scalia's opinion was a full-bore attack on the notion of innocent exonerees "paraded by various professors" and claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from "innocent." (How that made them candidates for the death penalty he did not explain.)

Oral argument this term has also revealed a subtle hardening on the part of some of the court's conservatives. In one case, Roberts questioned the need for a trial judge to specifically guide jurors regarding mitigating evidence.

Somehow, just as the American people are beginning to consider the grave injustices pervading the capital system, several justices seem to be staking out strong personal positions on this front in the culture wars.

In his article, Chemerinsky suggests that justices who change course on the death penalty often do so only after decades on the bench. That might suggest that the two new justices will only soften on capital punishment in the far distant future. These justices also would insist that if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen. But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.

dahlia.lithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.