Death and David Souter

January 24, 1991

Only four times in the past four terms of the Supreme Court did Justices Sandra O'Connor, William Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens join to win a 5-4 decision. Many court observers believed that when Justice David Souter, widely advertised as a conservative, replaced Mr. Brennan, the court's leading liberal, that was the end of that.

This week, in the first 5-4 decision of his tenure on the Supreme Court, Justice Souter voted as Justice Brennan would have, joining Justices O'Connor, Marshall, Blackmun and Stevens in overturning a Florida court on a state criminal case. And not just any criminal case. They overturned a death sentence. This is a highly symbolic issue to the right wing of the Republican Party. Justice Souter's vote certainly must confound them. After all, he was supposed to be the nominee of John Sununu, the most prominent conservative in the Bush administration.

One such vote is not a trend. It may not even be a hint. Yet Justice Souter's questioning on other issues that have come before the court for oral arguments this term also suggests someone who is by no means a doctrinaire conservative.

As for the death penalty decision, this also suggests the court is less predictably conservative than many liberals feared it had become. Justice O'Connor wrote the opinion of the court. It lays down some very strict and apparently new requirements for state courts contemplating a death sentence. The Supreme Court appeared last term to say that the time had finally come for state courts to get on with the business of approving executions without having federal judges second-guess them. The high court sided with the state against defendants in five of six death penalty decisions. But this decision invites second-guessing.

As opponents of the death penalty, we welcome this. Even proponents of capital punishment should recognize the decision for what it is and reconsider their advocacy. This decision will make death penalty prosecutions even more difficult, time-consuming and wasteful of the scarce resources of the criminal justice system.

It was already too wasteful. So much so that Maryland Chief Judge Robert Murphy, in a speech prepared before this Supreme Court decision, called on the state legislature to look at the cost of capital punishment prosecution and consider whether it might not be "more productive" to redirect some of those resources to other criminal prosecutions. We don't think there is any question but that it would be.

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