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Justice has doubts about death penalty

Justice O'Connor says "the system may well be allowing some innocent defendants to be executed.''

Compiled from Times wires

© St. Petersburg Times,
published July 4, 2001

WASHINGTON -- Justice Sandra Day O'Connor, whose vote often decides close cases at the Supreme Court, has added her voice to a growing chorus of skepticism about the administration of capital punishment in the United States.

In a speech to a women's law group in Minneapolis on Monday, O'Connor said "serious questions were being raised about whether the death penalty is being fairly administered." She noted that 90 death row inmates have been exonerated since 1973, while the number of defendants sentenced to death has increased twenty-fold since she joined the court in 1982.

"If statistics are any indication, the system may well be allowing some innocent defendants to be executed," she said.

O'Connor attributed much of the problem to the disparity in legal representation between those who have money and those who do not. She said that last year in Texas, defendants represented by court-appointed lawyers were 28 percent more likely to be convicted than those who paid for attorneys on their own and 44 percent more likely to receive the death penalty if convicted.

To address such problems, she suggested that court-appointed lawyers in capital cases be required to meet certain minimum standards and that they be adequately compensated.

Noting that Minnesota does not have the death penalty, O'Connor said, "You must breathe a big sigh of relief every day."

O'Connor's challenge to the adequacy of defense attorneys in capital cases struck some death penalty critics as ironic. In 1984, O'Connor wrote a landmark opinion that made it difficult for death row inmates and other defendants to prevail on claims that their lawyers were ineffective.

In other death-penalty cases, O'Connor has written for 5-4 majorities, ruling that the Constitution does not prohibit executing the mentally retarded, and that the death penalty can be applied even to defendants who did not kill or intend to kill, but were involved in a felony and showed reckless indifference to life.

"If we were going to be critical, we would say, "Hello, Justice O'Connor. Whether you authored the opinions or not, you certainly were in the majority of opinions that cut all the holes in the safety net,' " said Elisabeth Semel, former director of the American Bar Association's Death Penalty Representation Project.

But O'Connor, 71, has departed from her conservative colleagues at times, especially in recent cases. In June, for example, she authored an opinion reversing the death sentence of a Texas man because the judge had not properly instructed his jury about what factors it could consider when deciding upon a sentence.

O'Connor said that during her 20 years on the court, jurisdictions with the death penalty have accelerated executions, marching a greater percentage of their death row populations into the execution chamber.

In the past quarter-century, 91 death row inmates have been exonerated in the United States. They were acquitted at retrial, had charges against them dismissed, or, in one Florida case, were cleared posthumously. Some death row inmates have been exonerated by DNA tests conducted while their sentence was on appeal. But, O'Connor said, only a minority of states that impose the death penalty require that such tests be conducted after trial, and DNA evidence is not available in every case.

(Florida's Legislature this year approved a law allowing inmates to seek DNA testing up to two years after they are convicted or after new testing procedures are developed. The state's top court is developing rules for implementing the law.)

O'Connor's comments echoed concerns expressed by the more liberal Justice Ruth Bader Ginsburg in a speech given April 9 in Washington.

"I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well-represented at trial," Ginsburg said.

Justice Stephen Breyer recently told Radio France International that "there is much more discussion (about capital punishment) now in the U.S. than there was five years ago. I also think that DNA will perhaps make a difference, because if we find that someone is really innocent, if we could prove this with DNA, maybe that would make a difference."

The court does not reveal which justices vote to hear a case, but observers think O'Connor also provided the fifth vote for the court's recent decision to reconsider its 1989 ruling on the execution of the mentally retarded.

The justices also are preparing to revisit the death penalty issue in another case. It deals with a Virginia man's claim that he was sentenced to death after being represented at trial by a lawyer with a clear conflict of interest.

Those cases will be heard after the court begins its new term in October.

- Information from the Baltimore Sun, Washington Post, Chicago Tribune and Associated Press was included in this report.

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