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Death row's answers live in hearts, not behind bench

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By HOWARD TROXLER, Times Columnist

© St. Petersburg Times
published June 26, 2002

To show you how good I am at predicting these things, back in February I declared that U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas would never vote to overturn hundreds of death sentences in an Arizona case the court was considering.

So naturally, that's exactly what they did on Monday, taking the same side as Ruth Bader Ginsburg in a 7-2 ruling. (The well-known Ginsburg-Scalia-Thomas coalition strikes again.) Maybe they did it just to be ornery.

The court decided that when a murderer is being sentenced, any facts used to justify the death penalty must be proven to a jury beyond a reasonable doubt. What good is the right to a jury trial, the court asked, if the judge then gets to decide his own facts anyway?

It was the second major ruling on the death penalty within a week. A few days before, the court voted 6-3 to ban the execution of the mentally retarded, on the grounds it is cruel and unusual punishment. The concept is fundamentally decent, but we will see how easily it is put into practice once everybody on death row rushes forward with new IQ tests.

Opponents of the death penalty are cheered by these rulings. Some even suggest they show a movement by the court away from the death penalty.

But it might be a little early for them to ice the champagne. It looks just as much like fine-tuning by the court, a clearing of the decks as peripheral objections are resolved and removed one by one.

Okay, we won't execute the retarded. Let's also get rid of the risk of judges using unproven facts to set sentences.

What else ya got?

Sooner or later, once you get past the side issues, the debate boils down to two core questions:

Are there crimes that deserve the death penalty?

If so, does society choose to impose it?

The answer to the first question is: You bet.

As for the second question, society's answer, certainly for the past 30 years or so, has been an overwhelming yes as well.

It's possible to support the death penalty without being wild-eyed about it. We need to worry about fairness. We need to worry that rich people can afford fancy lawyers to avoid it. We need to worry that black people are more likely than white people to get it for the same kind of crime. It is offensive and stupid, worthy of Saddam Hussein, that some states think it is all right to assign incompetent defense lawyers who sleep through the trial.

Opponents of the death penalty say these problems add up to an insoluble mess. They also say that it costs a lot more than paying to keep someone in prison for life, if that matters.

It also is fashionable lately for opponents of capital punishment to cite the number of "innocent" people who are sentenced to death. The proof of their "innocence," this argument goes, is that their cases were reversed on appeal, which also, by the way, proves that the legal system is "broken."

But that is silly logic. It proves the exact opposite: that the appeals court system does an extensive job of weeding out cases and pointing out procedural flaws. Instead of being "broken," the legal system is working exactly the way it was intended. What is the opposite of this argument -- that if we were rushing everybody off to the death chamber, and never granting any appeals, that the system would be working fine?

In one recent report that claimed almost two dozen "innocent" Floridians had been sentenced to death, most involved cases later reversed on appeal for various procedural errors. In only four cases was the actual innocence of the accused in serious doubt. Three were released -- released! -- after subsequent reviews of their cases. One died of cancer before he could be exonerated by DNA evidence.

Enough with the sideshow. The central question to be answered about capital punishment is whether it is beneath a civilized people. If you believe that, your position is noble, and good luck to you in convincing a majority of Americans. You have a ways to go.

-- You can reach Howard Troxler at (727) 893-8505 or at

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