IN A RECENT speech in Chicago, Supreme Court Justice John Paul Stevens offered some pointed words on the death penalty. Justice Stevens was giving an award named for the late Justice Thurgood Marshall to Abner J. Mikva, a former chief judge on the D.C. Circuit Court of Appeals. The death penalty was a point of particular passion for Justice Marshall -- who opposed it as unconstitutional -- so it was fitting for Justice Stevens to focus briefly on the subject. His remarks warrant attention as states continue efforts to reform capital punishment and protect innocent people from execution.
Justice Stevens began by rejecting the notion that poor quality of counsel explains the rash of wrongful convictions in capital cases. While he acknowledged the problem, he praised the bar's work in many capital cases -- indeed, beyond where we would go -- and emphasized that "there are other features of death penalty litigation that create special risks of unfairness."
The brutal facts of many capital cases "cry out for retribution," he argued, making it "extremely difficult for jurors to resolve doubts in favor of permitting a possible perpetrator of a heinous crime to go free." Most judges who preside at capital trials are elected, creating a "subtle bias in favor of death" -- since it's hard to face reelection having given a break to a killer. The jury selection process does the same. Prosecutors question jurors at length about their willingness to impose death; this creates an imbalance in juries, when prosecutors strike those with anxiety about capital punishment, and it creates an atmosphere "in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant." Finally, he pointed to the role of statements by victims on the impact of crimes -- statements that shed "absolutely no light on either the issue of guilt or innocence or the moral culpability of the defendant" yet can sway jurors "on the basis of their emotions rather than their reason."
Justice Stevens rather undersells the problem of the quality of defense lawyers. Bad defense work is one of the consistent themes of wrongful convictions, capital and other. Still, the issues that he raises should play a bigger role in reform efforts. Lessening the use of peremptory challenges to prospective jurors could reduce prosecutors' ability to eliminate jurors who would bring balance to capital juries. And the role of victim-impact statements certainly deserves a fresh look. These questions are largely settled in federal constitutional law, so the change will probably not come from the court on which Justice Stevens sits. But that doesn't mean that states can't on their own act to make capital litigation fairer and less likely to result in tragic injustice.