AS TWO justices sound alarms, Supreme Court may be ready to set new limits on capital punishment

Thursday, August 2nd 2001, 12:00 am
By: News On 6

WASHINGTON (AP) _ Almost every week a death row inmate somewhere in America asks the nation's highest court for a reprieve. Almost every week the Supreme Court says no, and another execution goes forward.

Now, as the two female justices publicly express qualms about the death penalty, the high court seems prepared this fall for the most extensive reconsideration of the issue in a quarter-century.

The court is far from a head-on confrontation over whether the death penalty violates the Constitution's prohibition on cruel and unusual punishment. At least three of the nine justices are firm death penalty supporters, and none is an abolitionist on the model of such liberals as the late Thurgood Marshall.

Instead, in choosing to hear some death row appeals and in unusually blunt public comments, the court is poking around the edges of the national debate over whether the death penalty is being applied fairly.

``The justices are not immune to this whole new atmosphere about the death penalty, the debate that is under way and the concern about accuracy and fairness,'' said Richard Dieter, executive director of the Death Penalty Information Center, a clearinghouse that is critical of the way the death penalty is applied.

The court's interest coincides with the high-profile releases of 10 death row inmates after DNA tests proved or suggested their innocence and with public opinion polls that show public unease with some aspects of American capital justice.

The American Bar Association, opening its annual meeting in Chicago this week, recommended that states that allow the death penalty examine the process, from trial through lengthy appeals, to improve its fairness.

``Every state that imposes the death penalty has a duty to determine whether its capital punishment system is flawed and, if so, to eliminate those flaws,'' said Michael Greco, head of the ABA panel that released a step-by-step guide for reviews of state capital punishment procedures.

Justice Sandra Day O'Connor startled her audience as well as people on both sides of the issue when she opened a speech in Minnesota last month by suggesting that the country may need minimum standards for lawyers representing people facing the death penalty.

``After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country,'' O'Connor said.

A cautious death penalty supporter, O'Connor noted the approximately 20-fold increase in the number of executions carried out each year since she joined the court in 1981, and said the quickening pace has highlighted problems.

``Perhaps most alarming among these is the fact that if statistics are any indication the system may well be allowing some innocent defendants to be executed,'' she said.

Justice Ruth Bader Ginsburg said she would support at least one state's proposal to suspend executions while the process was examined.

``I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution (reprieve) applications in which the defendant was well represented at trial,'' Ginsburg said in a speech in April.

More than 700 people have been executed since the Supreme Court declared in 1976 that it is possible to administer the death penalty fairly, and allowed states to reinstate the practice.

The justices are now the court of last resort for some 70 or 80 condemned people a year, but death penalty supporter Justice Clarence Thomas recently told a St. Louis audience that the court's reviews are never routine.

``I think the concern is there, it's a continuing concern and a concern heightened by the finality,'' Thomas said last month.

In its most recent term the court voted 6-3 to overturn the death sentence of a retarded Texas killer. O'Connor wrote a majority opinion critical of the way Texas authorities handled the case.

The court has agreed to hear appeals from two additional Death Row inmates in the fall. With drama that does not usually attend the court's dry, one- or two-sentence pronouncements on most death penalty cases, the justices stopped the men's executions with only hours to spare.

One case goes beyond the procedural issues in the recent Texas case to test the constitutionality of executing the mentally retarded. The court settled that question with a qualified yes a dozen years ago. In agreeing to revisit the issue, the court will look at whether national attitudes have changed.

The justices also agreed to hear an appeal from a convicted killer whose court-appointed lawyer once represented the victim.

While an unusual question, the case may offer the court an opportunity to look more widely at the quality of legal representation in capital cases.