WASHINGTON - Justice Sandra Day O'Connor, an important swing vote on death penalty cases before the Supreme Court, has become the latest public official to express concern about the administration of capital punishment in the United States.
In a speech Monday to a women's law group in Minneapolis, O'Connor said that "serious questions were being raised about whether the death penalty is being fairly administered." She noted that 90 death row inmates have been exonerated since 1973, while the number of defendants sentenced to death has increased twentyfold since she joined the court in 1982.
"If statistics are any indication, the system may well be allowing some innocent defendants to be executed," she said.
O'Connor attributed much of the problem to the disparity in legal representation between those who have money and those who do not. She said that last year in Texas, defendants represented by court-appointed lawyers were 28 percent more likely to be convicted than those who paid for attorneys on their own and 44 percent more likely to receive the death penalty if convicted.
To address such problems, she suggested that court-appointed lawyers in capital cases be required to meet minimum standards and that they be adequately compensated.
O'Connor's comments echoed concerns expressed three months ago by the more liberal Justice Ruth Bader Ginsburg in a speech given in Washington. O'Connor's remarks also reflect broader questions about the administration of the death penalty that have led several states to review the fairness of capital punishment. A bill to temporarily halt executions in Maryland failed this year.
Death penalty opponents said they were surprised and encouraged by O'Connor's remarks. They said her comments suggest a willingness to examine the workings of the criminal justice system more closely.
"There clearly may be an emerging majority on the court that is willing to address some of the more egregious problems," said David Bruck, a lawyer with the Federal Death Penalty Resource Counsel Project in South Carolina.
O'Connor, 71, has a mixed record on death penalty cases. For many years, she has voted with the conservative majority to limit the rights of state prisoners, including death row inmates, to appeal their convictions and sentences in federal courts.
She also voted with the majority in ruling that the Constitution permits the execution of defendants who were as young as 16 when they committed their crimes. And she wrote an important opinion in 1989 upholding the execution of the mentally retarded.
Death sentence reversed
But she has departed from her conservative colleagues at times, especially in recent cases. Last month, she wrote an opinion reversing the death sentence of a Texas man because the judge had not properly instructed his jury about what factors it could consider when setting a sentence.
The court does not reveal which justices vote to hear a case, but observers believe she also provided the fifth vote for the court's recent decision to reconsider its 1989 ruling on the execution of the mentally retarded. That case will be heard after the court begins its new term in October.
Whether O'Connor is undergoing a fundamental change in her views on the death penalty remains to be seen. But legal analysts say her recent decisions and her comments this week make it appear that way.
"I think she's changing, and I would have been able to say that even before hearing what she said in Minneapolis," said Suzanna Sherry, a law professor at Vanderbilt University. "It bodes well for death penalty litigants before the Supreme Court because she's the swing vote."