How Judges Prove Their Toughness

April 04, 1995|By STAN LICHTENSTEIN

BETHESDA — Bethesda. -- I haven't kept up with the technology so I don't know whether Alabama beheads, hangs, electrocutes or lethally injects its condemned prisoners.

Thanks to Supreme Court Justice John Paul Stevens, however, I'm now more familiar with capital punishment as a political technique. Dissenting in solitary splendor from the recent Harris v. Alabama opinion of Justice Sandra Day O'Connor and seven other justices, Mr. Stevens cites cogent details of the state's judicially-driven dance of death.

The system, as I see it, is comparable to the political strategy adopted by George Wallace some 40 years ago after he lost an early bid for the Alabama governorship. At the time, Mr. Wallace was something of a ''liberal,'' painted as soft on blacks by his detractors. His victorious opponent, he said later, had ''out-segged'' him. Mr. Wallace, a rising political star, made sure it did not happen again, and enjoyed a long reign as a governor devoted to ''Segregation Forever.''

Today, white supremacy is more or less passe, but ''Tough on Crime,'' backed by the death penalty, is sweeping the country, with Alabama at the front of the charge.

What an irony! Justice Stevens, the Supreme Court's senior ''liberal,'' urges judicial restraint, while the Justice O'Connor, supinely backed by ''conservative,'' and ''moderate'' justices, persuasion, comes down on the side of Alabama's activist, politically ambitious judges.

Here's the situation: Alabama judges must go regularly before the voters -- every six years. An impressive record of capital-punishment frequency is a political plus. The trial judge in the Harris case surely had this in mind when he overrode a jury that had voted 7 to 5 to sentence a defendant to life-without-parole.

Judicial overrides of juries balking at the death penalty are now routine in Alabama. Justice Stevens reports that Alabama judges ''have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have

spared.''

Twenty-nine of 37 states with capital punishment leave sentencing exclusively to the jurors. ''The fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation,'' Justice Stevens writes, bespeaks a ''political climate in which judges who covet higher office -- or who merely wish to remain judges -- must constantly profess their fealty to the death penalty.''

Our jury system, Mr. Stevens reminds us, was an important development rising out of the American Revolution, demanded by citizens who remembered the horrors of monarchical justice in the mother country. Of today's judges in Alabama he observes: ''The danger that they will bend to political pressures when pronouncing sentences in highly publicized cases is the same danger confronted by judges beholden to King George III.''

Jurors come from the populace at large, but they have their own perspectives as they grapple with issues, evidence and circumstances, and as they view defendants and prosecutors in the flesh. ''Voting for a political candidate who vows to be 'tough on crime' differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death,'' writes Justice Stevens.

''Jurors' responsibilities terminate when the case ends; they answer only to their own conscience. . . . More important, they focus their attention on . . . the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. . . .''

Murderers and their accomplices are seldom lovable. The defendant Louise Harris, married, church-going mother of seven, had taken a lover and with him worked out a plot that ended in her husband's death at the hands of a shotgun-wielding hit man. Harris and her lover were expecting to share some $200,000, representing the husband's death benefits.

Before trial, the lover turned state's evidence, plea bargained and was sentenced to life without parole. The trigger man, for whom the jury also favored life without parole, was, like Harris, sentenced to death. Another accomplice, the hit man's partner in the crime, got life without parole. That's an ugly set of facts, but fairly typical of murders perpetrated by amateurs or professionals.

Exercising ''judicial restraint'' according to her lights, Justice O'Connor in the Supreme Court's majority opinion brushed aside Justice Stevens' depiction of Alabama's politicized sentencing system and argued that the statistics, whatever their significance. ''say little about whether the scheme is constitutional.''

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