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The Washington Post

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

Speaking to a group of women lawyers in Minneapolis on Monday night, O’Connor noted that “serious questions” are being raised about the death penalty, and pointed to the cases of 90 death row inmates who have been exonerated since 1973.

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

States have put to death more than 700 prisoners in the past 25 years. The federal government executed Oklahoma City bomber Timothy McVeigh on June 11, the first time a federal prisoner had been executed in almost four decades. Eight days later, the federal government put to death Juan Raul Garza, a convicted drug trafficker and murderer.

O’Connor’s remarks came shortly after President Bush’s return from a trip to Europe during which he was met with repeated protests against capital punishment in the United States sparked by the McVeigh execution. The international protests have added new energy to efforts by U.S. anti-death penalty activists.

At the Supreme Court itself, the justices are preparing to revisit the issue in two major cases next year. One case will address the question of whether it is permissible to execute convicted murderers who are mentally retarded; the other 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.

“Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used,” O’Connor said Monday.

O’Connor said statistics showed that in Texas, capital defendants with appointed counsel were 28 percent more likely to be convicted than those retaining their own attorneys — and 44 percent more likely to receive a death sentence if convicted.

O’Connor’s questions about the adequacy of counsel in capital cases echoed concerns expressed by Justice Ruth Bader Ginsburg in an April 9 speech 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 also commented recently on the death penalty to a French radio audience, telling 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.”

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