With a record 1,200 prisoners on death rows across the country, the Supreme Court yesterday approved new procedures allowing lower courts to speed up executions.
The decision for the first time sets guidelines for expediting review of legal issues raised by death row inmates as well as their last-minute requests for delays.
The justices said yesterday that, in some circumstances, lower courts can consider both at the same time, in effect telescoping a process that otherwise can take months or years.
At the same time, the court cautioned the lower courts to give defendants an "adequate opportunity" to make their cases when they raise serious challenges.
The 6-to-3 ruling was among the session's most important as the court ended one of its busiest, longest and most controversial terms. The court recessed without making the long-awaited decision on legality of home videotaping. The justices said they would consider that issue in the term that begins next October.
The capital punishment ruling came at a time of increasing complaints from state officials and death penalty proponents about what they consider "endless" appeals and long delays in executions.
At the same time, organizations opposed to the death penalty have expressed fears that officials have begun rushing executions without giving defendants a full chance to present their pleas.
Yesterday's decision attempted to balance those concerns.
"I think it's a decision capital punishment lawyers can live with," said Jack Greenberg, of the anti-death penalty Legal Defense and Education Fund Inc. But he vigorously objected to another part of yesterday's ruling that allowed the use of psychiatric testimony in sentencing trials.
That controversy stems from the Texas practice of having psychiatrists testify whether a defendant will always be dangerous and will probably kill again, even when they have never examined the person convicted. The American Psychiatric Association has condemned the practice, saying such predictions are completely unreliable.
The ruling came in the case of Thomas Andy Barefoot, 37, who was convicted in the August, 1978, shooting death of police officer Carl Levin, father of five, who had been questioning Barefoot in connection with a nightclub fire in Harker Heights, Tex. Prosecutors said Barefoot was a fugitive and shot Levin to avoid arrest.
Last January, the 5th U.S. Circuit Court of Appeals rejected Barefoot's request for a stay of execution and his challenge to the psychiatric testimony without hearing full arguments and receiving the usual lengthy briefs. The same appeals court took nearly identical action when it allowed the December execution of Charlie Brooks. Justice Byron R. White, writing for the court, upheld the 5th Circuit's actions yesterday in Barefoot vs. Estelle.
"That the Court of Appeals' handling of this case was tolerable . . . is not to suggest that its course should be accepted as the norm or as the preferred procedure," he said.
Death row convicts, as well as all other defendants, have at least two means of challenging their fate. First, they may directly appeal a conviction or a sentence all the way up to the Supreme Court. If that fails, they have a secondary line of attack: They may file petitions of habeas corpus in federal courts to have their convictions or sentences reconsidered. White noted that the expedited procedures approved yesterday apply only to these petitions.
A U.S. District Court judge who denies such a petition but believes it is still worthy of appellate review may issue a "certificate of probable cause" permitting the defendant to go to a federal appeals court.
Permission requires something more than just a showing that a claim is not "frivolous," White said yesterday; it requires "a substantial showing" that constitutional rights have been denied.
The court of appeals is then "obligated" to consider the plea, White said, and should stay an execution when necessary for such consideration. But even when a claim is substantial, the court may adopt expedited or sometimes "summary" procedures.
"If appropriate notice is provided, argument on the merits may be heard at the same time the motion for a stay is considered," he said, "and the court may thereafter render a single opinion deciding both the merits and the motion . . . ."
If the petition is the second or third filed by the same defendant, White said it can be given even shorter shrift.
Defendants can go to the Supreme Court, he said, but stays of execution should not be granted automatically while the Supreme Court petition is pending. Only substantial claims likely to obtain Supreme Court review justify such stays, White said.
The "role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited," White said. "Federal courts are not forums in which to relitigate state trials. Even less is federal habeas a means by which a defendant is entitled to delay an execution indefinitely . . . . Unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding," he said.
Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr., William H. Rehnquist and Sandra Day O'Connor joined White's opinion. Justice John Paul Stevens filed a separate concurring statement.
Justices Thurgood Marshall, William J. Brennan Jr. and Harry A. Blackmun dissented. "I frankly do not understand how the court can conclude that the court of appeals treatment of this case was 'tolerable,' " Marshall wrote.
"If a prisoner had been sentenced to any punishment other than death, his appeal would therefore have been considered and decided in accord with the court of appeals' ordinary procedure," Marshall wrote. "But since he has been sentenced to death, and since his scheduled date of execution is imminent, his appeal is to be decided under special truncated procedures.
"In short, an appeal that raises a substantial constitutional question is to be singled out for summary treatement solely because the state has announced its intention to execute the appellant before the ordinary appellate procedure has run its course. This is truly a perverse suggestion . . . . There is absolutely no justification for providing fewer procedural protections solely because a man's life is at stake . . . ," he said.
The court ruled on two other important death penalty cases yesterday. In Barclay vs. Florida, the justices said a Florida judge did not act improperly when he allowed his recollections of Nazi war crimes to influence his decision to sentence a man to death for a racially motivated murder. The judge had rejected a jury's recommendation of a life sentence.
Rehnquist wrote the decision. Stevens, joined by Powell, wrote a separate concurrence calling Rehnquist's language too broad. Marshall, calling it a "miscarriage of justice," dissented with Brennan. Blackmun wrote a separate dissent.
In California vs. Ramos, the court said a judge does not violate the Constitution when he informs a jury in a death penalty case that a life sentence could result in a commutation by a governor. O'Connor wrote the decision for the court. Marshall, Brennan, Blackmun and Stevens dissented.