AMERICAN thinking is, in today's jargon, deeply conflicted over capital punishment. According to opinion polls and state legislative votes, a majority of Americans supports, or at least accepts, the power of the state to end the lives of people convicted of certain heinous crimes. At the same time, however, the country allows sand to be thrown into the legal machinery leading to executions. Executions have increased in the decade-plus since the Supreme Court laid out guidelines for death-penalty statutes that pass constitutional muster. Yet they are still relatively rare, and thousands of prisoners languish on death rows. The average wait between conviction and execution exceeds eight years. Federal and state courts, with the acquiescence of the citizenry, permit virtually interminable appeals of death sentences, under ever more creative legal theories.
Congress has thus far resisted urgings, most recently by Chief Justice William Rehnquist, to speed up executions by restricting the kinds and number of appeals capital inmates can file. And public opinion is not saying, "Let's get on with it!"
Yet that is the sentiment behind the Supreme Court's 6-3 decision last week that will curb habeas corpus petitions by death-row inmates. Writs of habeas corpus are the means by which inmates challenge constitutional defects in their conviction or sentencing. Under the court's ruling, most convicts will get one bite at the habeas apple. Federal appellate courts will be obligated to reject subsequent filings under all but the most extraordinary circumstances, no matter how compelling the additional consti tutional rights being asserted.
If multiple habeas petitions have impeded justice (a view disputed by many defense lawyers and legal experts), it's not so much because of slick lawyering. It's because of deep-rooted American notions about fairness. And, at an even deeper level, it's because of profound public ambivalence about death-dealing by government.
The best answer to abuses, and, more important, to Americans' "conflictedness" about capital punishment, isn't to make executions faster. It's to eliminate the death penalty, as most advanced nations have done.
That would remove the horrible possibility of executing an innocent person. It would lay to rest persistent questions about racial inequities in applying the death penalty. And it would affirm a commitment to rehabilitation and redemption.
Justice could then be swift and certain - and dignified and humane. And America could stop torturing itself over capital punishment.