Capital cases not getting due attention from courts

July 27, 1999|By Ronald Dworkin

AMERICANS fiercely want the death penalty, and few politicians dare to oppose it. But both seem unwiling to pay the large price, in judicial time and public patience, that common decency requires before running the awful risk of killing someone by mistake. Two capital punishment decisions at the end of the Supreme Court's last term make that clear.

In Jones vs. United States, the court's first decision interpreting the 1996 federal Death Penalty Act, the court upheld a death sentence even though the sentencing jury had incomplete information.

The trial judge had refused to tell the jury that if it deadlocked, the law required him to impose a life sentence without possibility of parole. After a day and a half of deliberations, the jury voted unanimously for death because some jurors who opposed the death penalty thought that if they didn't agree on death, the defendant might one day be freed.

Justice Clarence Thomas, writing for a 5-4 majority, said that the trial judge was within his rights not to tell the jury that this could not happen because "the very object of the jury system is to secure unanimity," and instructions like the one the defense had requested "might well have the effect of undermining this strong governmental interest."

In Strickler vs. Greene, the court approved a Virginia death sentence, although the prosecution had wrongly withheld evidence that the defense could have used to undermine a key prosecution witness.

Justice John Paul Stevens, writing for a 7-2 majority, conceded that "Without a doubt [that] testimony was prejudicial . . . and discrediting her testimony might have changed the outcome of the trial."

But, Justice Stevens continued, a federal court should not order a new trial, even after a death sentence, unless there is not just a chance but a "reasonable" possibility that the outcome would have been different if an error had not been made.

These decisions seem wrong and dangerous. The criminal-justice system must be effective as well as just. The public does have an interest, as Justice Thomas said, in juries reaching verdicts rather than disagreeing, and it might be prudent, in some more ordinary cases, for a judge not to give the jury information about the consequences of a deadlock that would make deadlock more likely.

The public also has an interest in not paying for retrials just because minor mistakes were made in the first trial.

Also, in some ordinary cases, it might be appropriate for an appellate court to refuse to order a new trial even though evidence was withheld from the defense, if that evidence very likely would not have altered the outcome.

But, as the Supreme Court itself remarked in another case, death is "qualitatively" different from other punishments, and what might seem a plausible compromise for the sake of efficiency in ordinary cases seems obscene when a person's life is at stake.

The Supreme Court has become impatient, and super due process has turned into due process lite. Its impatience is understandable, but it is also unacceptable. If Americans insist on the death penalty, they must accept the moral consequences of their choice.

Judges must listen with painstaking and patient attention to every argument for life that is not plainly frivolous, and if they find any actual mistakes in the process that has condemned a human being to death, then they must repeat that process and give him another chance for life. These are inescapable moral demands.

Ronald Dworkin, a professor of jurisprudence at Oxford University and a professor of law and philosophy at New York University, is author of "The Moral Reading of the Constitution." He wrote this for the Los Angeles Times.

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