SUPREME COURT Justice William H. Rehnquist's outburst against the way his colleagues handle death penalty cases makes some sense -- superficially. He thinks the delays between sentences and exectuions are too long. He believes the court has surrounded those sentenced to death with too many "procedural protections" and avenues of appeal. He says his colleagues, by insisting on these "arcane niceties," have sent a signal to lower court judges to avoid at all costs the imposition of death sentences.
All this, no doubt, rings true to those who believe not only that capital punishment is constitutionally and morally justified but also that it is just another punishment to be imposed and carried out in appropriate cases. But to most judges and justices, capital cases are different from all others. They are rarely treated routinely at any level at the judicial system and never so at the Supreme Court.
The truth is that the existence of the death penalty has changed and distorted American criminal law for half a century. The careful scrutiny judges give these cases has opened up questions that otherwise might not have been explored and has led to the creation of some of those procedural niceties. Death penalty cases, for example, contributed more than any other single factor to the development of the numerous kinds of appeal now available to all those convicted of crime.
This has come about because, to most justices, the most horrible outcome of any criminal proceeding would be the execution of an innocent person. To avoid that possibility, every doubt is resolved in favor of the accused and every opportunity is provided to let him raise every issue his lawyer can think of. Some bad law is made along the way.
Few members of the Supreme Court in the last 40 years have been able to approach death penalty cases with the detachment Justice Rehnquist suggests they should have. He commented that the case in which he wrote his biting dissent involved questions "of importance only to petitioner himself" and not therefore suitable for the court to hear. Writing in 1961 -- long before anyone argued seriously that capital punishment was unconstitutional -- E. Barrett Prettyman Jr. said, in his book "Death and the Supreme Court.":
Those who have watched the Court at work know the burden that each Justice carries in a death case. It is the one case in which he feels the full impact of both his responsibility and his fallibility. It is the case he takes to meals and to bed; it is the case that lingers on in his mind long after it is decided.
With that attitude prevailing, and it still does, on the Supreme Court as well as in many lower courts, is it any wonder that the delays between sentences and executions are so long or that multiple avenues of appeal exist?
Those on Capitol Hill who are now urging the resurrection of the death penalty for certain federal crimes would do well to consider what such a step would do to other reforms they seek in the criminal law. Judicial resistance to substantial changes in the appellate process or in the procedural protections given defendants is likely to be higher when death cases are lurking in the wings.