jurisprudence: The law, lawyers, and the court.

Sudden DeathAmerican support for the death penalty is diminishing—except on the Supreme Court.

By Dahlia Lithwick
Posted Saturday, Feb. 10, 2007, at 6:42 AM ET

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Justice Antonin Scalia
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 harden in the one institution that was, until recently, showing real doubt: 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 moratoria on the death penalty; executions in New York are on hold after the state's death-penalty law was declared unconstitutional in 2004; 11 other states have effectively barred the practice because of concerns over lethal injection (including, most recently Florida and Tennessee); and 11 more are considering either moratoria or repeals.

The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 states executed 98 people, and in 2006 that number dropped to a 10-year low of 53. American judges and juries steadily condemned about 300 prisoners a year to death through the1990s; now that number has declined by over half, hitting a low of 114 this past year. Public support also seems to be faltering. A 2006 Gallup poll showed that two-thirds of Americans still endorse capital punishment for murderers. But when given the choice between the death penalty and a life sentence without parole, for the first time in 20 years, more people preferred the life prison term (48 percent) to capital punishment (47 percent).

Our newfound national queasiness over the death penalty extends from the methods of execution to growing fears that we're executing the wrong guys. The most pressing problem for many states is lethal injection, the preferred method in 39 of the 40 states that permit capital punishment. Last December, then-Gov. Jeb Bush of Florida halted executions statewide following one in which the prisoner took 34 minutes to die and suffered chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail that states use may simply mask agonizing pain prior to 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 other reasons for our growing doubt about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence showing "that a substantial number of death sentences have been imposed erroneously," the pressure that elected judges face to impose capital punishment, and the problem of barring jurors who oppose capital punishment from sitting on capital cases, creating juries that may favor execution. For these and other reasons, Americans have begun to worry that the death penalty in this country is not reserved for the so-called worst of the worst, but rather for the poorest of the poor, and those whose trial attorneys later prove to have been asleepest at the switch.

The Innocence Project now claims 194 post-conviction DNA exonerations. A study of wrongful executions, by Hugo Bedau and Michael Radelet, contends that between 1900 and 1991, 416 clearly innocent people were sentenced to death. And studies increasingly show that the death penalty is shockingly and disproportionately meted out based on race in this country. So, pick your reason. One thing is clear, you needn't oppose the death penalty in all circumstances to fear that we're making terrible mistakes.

In recent years the national doubts over the death penalty were mirrored at the Supreme Court. In a 2006 survey of trends in capital cases in the Georgetown Law Journal, Duke University professor Erwin Chemerinsky observed that in the final years of the Rehnquist Court, the justices showed a marked, and surprising, tendency to overturn death sentences. In addition to reversing individual sentences, the justice banned executions of the mentally retarded and those who were juveniles at the time of their crimes, and made it easier for death-row defendants to argue ineffectiveness of counsel. Off the bench, Stevens, Justice Ruth Bader Ginsburg, and then-Justice Sandra Day O'Connor spoke publicly and passionately about flaws in the capital system. 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." "The reality of innocent people facing execution has had a profound effect on the Justices," he concluded.

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But, partly as a result of the changes wrought by the Bush administration in the composition of the court, there now seems to be a subtle hardening in favor of the death penalty.

When he worked in the Reagan White House, Chief Justice John Roberts wrote a memo suggesting the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases." One decision from last term highlights that worldview. The case involved a man who had been convicted of rape and murder, then later produced DNA evidence raising doubt that he was the culprit. The court, by a 5-3 vote, felt 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" before a hearing at which his evidence could be fully developed. And in argument in one case this term, Roberts questioned the need for a trial judge to specifically guide jurors about how to weigh evidence that defendants introduce to show why they don't deserve the death penalty, in spite of the crime they committed.

The shift from Justice O'Connor to Justice Samuel Alito may also result in a court that is far less worried about the fate of capital defendants. In a 2005 case about the effectiveness of capital counsel, then-Justice O'Connor voted with the court's more liberal members to find, 5-4, that the convicted man's lawyer had provided subpar representation at his trial. The author of the 3^rd Circuit decision that reversed was then-Judge Samuel Alito, who would have denied the defendant a new trial.

Also last term, Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David Souter—who had written in a dissent in a technical case about the Kansas capital-sentencing scheme—and made mention of exonerated innocents. Justice Scalia's opinion was a full-bore attack on the whole notion of the innocent exonerees "paraded by various professors." He claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from "innocent."

In his article, Chemerinsky notes that justices who change course on the death penalty often do so only after many decades on the bench. Justice Harry Blackmun famously decided that he could no longer impose the death penalty only at the end of a long career. That might suggest that the two new justices, Roberts and Alito, may only soften on capital punishment in the distant future. First, perhaps, they must oversee decades of fruitless appeals over inept lawyers and tainted evidence.

Or, like Scalia and Clarence Thomas, they may never change their minds, simply insisting that if the death penalty in this country needs fixing, the legislatures should to do it—and, in fact, that process is already beginning to happen. But as state legislatures grapple with capital punishment, and more Americans admit to their doubts, some members of the court seem paradoxically more certain than ever that the system works perfectly well. They may do that by clinging to the conviction, as does Scalia, that no one innocent has ever been executed, by clinging to Byzantine rules that preclude judicial review, or by holding fast to the notion that death-penalty cases are no different than other cases. That requires blocking out a good deal of reality—a reality the rest of us find increasingly hard to ignore.

A version of this article also appears in the Outlook section of the Sunday Washington Post.