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Capital punishment: Reform the process or abolish the practice

By CURTIS J. SITOMER / September 15, 1988



WHEN the United States Supreme Court opens for business again in less than three weeks, it will be deluged by a spate of requests from condemned murderers for stays of execution. It is not the mandate of the high court to determine guilt or innocence. Lower judicial tribunals have already done this. It is, however, the justices' responsibility to review convictions that have resulted in the death penalty to determine if trials were conducted in a manner whereby constitutional rights were properly protected.

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Many capital cases - even when the issue of guilt has long been resolved - linger in the system for many years. That has meant a steady expansion of death-row populations. There now are an estimated 2,000 men and women awaiting execution in the 37 states that permit capital punishment.

The extensive review of capital cases at both the federal and state court levels is vital. There are those who would streamline the process, but this presents a dilemma.

Defense attorneys stress that any limitation of appeals could result in the execution of innocent people. Prosecutors, on the other hand, say already-convicted felons often misuse the system and delay justice with unmerited appeals.

Is there a solution?

One worth considering involves contrasting alternatives: Either drastically overhaul procedures that permit long delays or just abandon the death penalty.

It comes not from a death-penalty abolitionist but one who closely watched the process work for over 15 years.

Retired Supreme Court Associate Justice Lewis Powell Jr. - who as a jurist upheld capital punishment as constitutional - now says the practice of lengthy state and federal review invites abuse. And he calls for Congress and state lawmakers to either streamline it or ``take a serious look at whether retention of a punishment that is not being enforced is in the public interest.''

Justice Powell says the present system that allows numerous appeals of a death sentence through the state courts to the US Supreme Court and often again through the federal courts to the Supreme Court is ``disjointed and chaotic.''

He stresses that time lags of eight years between the commission of a crime and execution are not unusual. These delays result from resolution of ``collateral'' issues that do not bear on the defendant's guilt or innocence.

``This hardly inspires confidence in or respect by the public for our criminal-justice system,'' Powell says.

In a roundabout way, is the former justice suggesting the abolition of capital punishment? Is he saying: Since justice must be swift and the death-penalty review process is inherently slow, we have no choice but to halt executions?

It's not so simple as that.

Powell believes the death penalty is constitutional. He is also aware that the majority of Americans favor it. He cast the decisive vote - and wrote the majority opinion - in a crucial decision last year that, if it had gone the other way, might have resulted in a moratorium on capital punishment.

At issue was the constitutionality of Georgia's death penalty, given statistical evidence of racial bias in capital punishment. At least one study showed that those who kill whites are far more likely to be sentenced to death than those who kill blacks.

Powell wrote that even if such bias existed, this did not warrant the Supreme Court to invalidate the Georgia law.

He allowed, however, that arguments about possible racial disparity in capital sentencing ``are best presented to legislative bodies.''

Last month the American Bar Association recommended that the federal government and states adopt laws that ``strive to eliminate racial discrimination in capital sentencing which may exist.''

It would seem to be commission time - time for a comprehensive national study to address delays in the process and time for a state-by-state assessment of death-penalty laws to assess possible racial bias.

Beyond that, given the continuing controversy about capital punishment, the next president of the US should charge a blue-ribbon panel to study its ramifications with a view toward reforming the process or abolishing the practice.

A Thursday column