Lawyers for Death Row

THE recent stay of execution granted to Robert Alton Harris, the double murderer who was scheduled to die in California's electric chair last Tuesday, has angered many people. They see the stay as further proof that the capital-punishment appeals process in the United States has become a system to frustrate justice through endless, duplicative petitions. In the 11 years that Mr. Harris has sat on death row, his sentence has been upheld repeatedly by both the state and US Supreme Courts. But on Monday the US high court blocked the execution pending further hearings on Harris's psychiatric condition.

Harris's case isn't unusual. On average, the post-conviction appeals process takes eight years.

Does the appeals process in capital cases need to be streamlined? Chief Justice Rehnquist thinks so, as does a committee he appointed chaired by retired Supreme Court justice Lewis Powell.

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The Powell committee recommended last year that habeas corpus petitions - the device by which an inmate challenges the constitutionality of his conviction and sentence - be limited to one in the state courts and one in the federal courts. Constitutional claims not raised in those two ``collateral'' challenges would be lost. But the limits would apply only in states that provide competent lawyers to capital defendants during the state collateral proceedings (lawyers already are provided to a capital defendant for trial and other appeals).

Last month a panel of senior federal judges softened the Powell committee's recommendations. As revised, they are more consistent with proposals made by the American Bar Association and in a bill sponsored by Sen. Joseph Biden (D) of Maryland. The ABA and Biden plans also would limit habeas appeals, but not as drastically, and they go further in addressing the great need for more-qualified lawyers at all levels of the death-penalty process, especially the trial itself.

The ABA and Biden proposals are certainly better than the chief justice's, especially in their emphasis on more-competent lawyering in capital cases (most capital defendants, being poor, are defended by inexperienced court-appointed lawyers, overburdened public defenders, or part-time volunteers).

But to the extext they would limit defendants' rights in the name of expediency, all the proposals are wrong. The bugaboo of the clever lawyer manipulating gullible judges to buy time for killers is a myth. Ask any death-penalty lawyer if it's easy to get a sympathetic hearing from judges on second and subsequent habeas petitions. Most judges skeptically think that if a lawyer didn't raise a constitutional issue the first time around, it probably doesn't have merit anyway. When, as in Harris's case, defendants are granted several bites of the habeas apple, it's because truly serious new issues are raised.

We don't need to shorten the route to the hangman's noose. Our tradition of due process is far too precious to play political games with.

What we really need - until we take the wisest course and abolish capital punishment altogether - is better lawyers for capital defendants (which would itself reduce the number of appealable issues). And we need congressional reversal of recent Supreme Court decisions that limit the retroactive application of newly established constitutional rights. Those rulings have made capital punishment faster, but even less fair.

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