Doubly Cruel and Unusual

April 23, 1992

"It is in the interest of fair and prompt administration of justice to discourage piecemeal litigation." -- Justice Thurgood Marshall.

The Sun has been a consistent opponent of capital punishment since the Supreme Court re-instated it nearly 20 years ago. We believe it is cruel by contemporary standards. We believe it is unusual in the sense that only a very few criminals convicted of death penalty-eligible crimes are so sentenced. Thus it is unconstitutional. We also believe extra money spent on death penalty cases could be used to put more criminals behind bars.

But we also have to say we were disgusted by the latest drama of legal maneuvering by our allies on this issue, the so-called anti-death bar. These are lawyers for the American Civil Liberties Union, certain public defenders and certain federal judges who seem to believe that precedents and rulings from higher courts can be treated with contempt.

The case of Robert Alton Harris, who was finally executed in California Tuesday, epitomizes legal procedure run amok. A state court sentenced him to death for a double murder in March of 1979. For 13 years his lawyers delayed action with the appeals process. (The average time required to settle an appeal is only 11 months.) There was always a U.S. judge to stay the execution. It still would not have been carried out if the Supreme Court had not in an unprecedented order removed the power to stay in this particular case from all lower court federal judges.

This do-anything-it-takes strategy to delay executions may seem humane, but we wonder if the victims' relatives and the condemned man himself might not have thought it cruel for him to be dragged back and forth from the gas chamber while legal eagles engaged in what looked more like midnight games than a civilized way to deal with a dreadful reality.

Instead of treating death sentences piecemeal, one element appealed one year, another held back for the next year, and so on -- judge-shopping all the while -- opponents of the death penalty should focus their energy and time on seeing that the accused gets a good trial lawyer at the start, then a good appeals lawyer who will make all arguments available to overturn a sentence in a timely fashion. This probably would have better results than the old way. Delaying tactics have not saved 169 criminals from being executed.

These delaying tactics may also have had an impact on public opinion. Polls show growing numbers of Americans now favor capital punishment. This is exactly the opposite of what was predicted when the death penalty was re-instated. It was assumed that people would be disgusted with the death penalty once executions actually began. That they haven't is perhaps due in part to disgust with macabre, cruel and unusual abuse of process.

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