Death penalty foes turn to new tactics

April 01, 1999|By Linda R. Monk

APPARENTLY some states have learned nothing from the recent spate of exonerations for death row inmates in Illinois. For example, Virginia is in the midst of an execution frenzy, planning to kill seven inmates in as many weeks.

The reason is simple. A spokesman for the governor reportedly said, "We've cut the appeals time down from 10 to 15 years to two to four." More states will be following Virginia's lead, thanks to a 1996 federal law that limited death penalty appeals.

Under a system like Virginia's, the 77 death row inmates released nationwide since 1973 because evidence surfaced of their innocence would all be dead. According to the Death Penalty Information Center in Washington, these inmates spent an average of seven years on death row before their release.

At the same time that a growing number of innocent people are being released from death row, the pressure to expedite appeals and limit new exculpatory evidence in court has reached a crescendo. Can judges do anything to eliminate the possibility of a fatal error?

Not according to several conservative justices on the U.S. Supreme Court -- including Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas. They say that courts are not constitutionally bound to consider evidence of innocence after a person is convicted. The proper channel for such claims then becomes clemency -- or, as the dissenting justices noted, "the unreviewable discretion of an executive official."

But, assuming that the late Justice Harry Blackmun was right when he said that, "the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants," can a judge properly declare the death penalty to be unconstitutional?

Some justices have argued that the death penalty violates the Eighth Amendment because it is "cruel and unusual punishment." The Supreme Court has ruled that this phrase "must draw its meaning from evolving standards of decency that mark the progress of a maturing society."

Thus, punishments once permitted when the Bill of Rights was adopted in 1791, such as pillories and whipping, are not constitutional today. Similarly, say opponents of capital punishment, the country has evolved beyond the death penalty.

The problem with this argument, as Justice Scalia rightly points out, is the plain language of the Constitution. The Fifth Amendment states that "no person shall be deprived of life . . . without due process of law," clearly condoning capital punishment. Even allowing that constitutional language is often fluid and subject to interpretation, a judge shouldn't "evolve" beyond the words she is sworn to uphold when their meaning is unequivocal.

For example, slavery was included in the structure of the original Constitution. The appropriate remedy for that evil was a constitutional amendment, not a court decision. The reasons are as much political as constitutional, evidenced by the voters of California some 20 years ago.

In 1976, the California Supreme Court ruled that capital punishment violated that state's constitution. Two years later, voters amended that document to reinstate the death penalty. Now, foes of capital punishment must win their argument the old-fashioned way -- by educating the public.

Some are optimistic, like Steve Rohde, a board member for Death Penalty Focus of California. He believes that "there is a deep vein of fairness and decency in the vast majority of Americans. . . . In the end, it is the people of the United States who will abolish the death penalty, whether that's done technically through an amendment to the Constitution or through federal and state legislation."

As it should be. But what happens to people like Anthony Porter -- who served 16 years on death row in Illinois for a crime he did not commit and came within 48 hours of execution? He is the 11th death row inmate exonerated in Illinois since capital punishment was reinstated in 1977.

Some death penalty foes are filing what amounts to product liability suits. The more inmates who hold the state accountable for its errors, such as the $36 million settlement recently awarded four men wrongly convicted in the Chicago area, the higher the real costs of execution become. Taxpayers might then find life without parole to be a more attractive alternative.

Linda R. Monk is the author of "The Bill of Rights: A User's Guide," which won the American Bar Association's Silver Gavel Award.

Pub Date: 4/01/99

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