Chipping away at the death penalty

Supreme Court Justice Harry Blackmun, a staunch opponent of capital punishment, once famously said, "I no longer shall tinker with the machinery of death."

But Blackmun retired eight years ago, and tinkering with the death penalty is exactly what the nation's highest court continues to do.

Death-penalty decisions handed down in recent days may – or may not – lessen the use of America's most profound criminal sanction.

One thing they clearly will do, however, is alter the nature of its application. In doing so, high court justices are reflecting the unique legal status of capital punishment. Court precedent holds that it is national consensus – a necessarily evolving thing – that determines what shall be deemed cruel and unusual punishment.

Recent decisions "make the current court term the most favorable in a quarter century in terms of death-penalty jurisprudence," says David Elliot of the National Coalition to Abolish the Death Penalty.

At the very least, the court is making this already-complex area of jurisprudence even more complicated. Congress may weigh in, as well – both House and Senate are currently considering bills that would set standards for death-penalty defense lawyers and ease access to DNA testing.

Thus some conservative groups are worried about lengthy new delays in death-penalty cases.

"They are .... adding layers of litigation to the process," says Michael Rushford of the Criminal Justice Legal Foundation.The modern history of the death penalty in the United States has been marked by continual legal adjustments of how the penalty should be applied.

But recent years have seen a period of upheaval regarding the subject unmatched since the Supreme Court in 1976 cleared the way for states to resume executions.

In 2000, Illinois Gov. George Ryan (R) declared a moratorium on executions, citing disturbing evidence of legal errors in many capital cases. In March, a commission appointed by Mr. Ryan recommended 85 reforms, including a reduction in the number of crimes punishable by the death penalty. In April, Maryland Gov. Parris Glendening (D) imposed a similar moratorium, pending the results of a state study concerning possible racial bias in death-penalty cases.

DEATH-PENALTY opponents have long argued that the nation's death rows are disproportionately filled with criminals convicted of murdering whites.

Many states have also been rocked by DNA tests that have revealed some innocent people have been convicted of capital crimes and sentenced to death. Easing access to such tests is one point of the Innocence Protection Act now under consideration by both House and Senate.

Then the Supreme Court last week barred execution of retarded defendants. In doing so, the majority ruled that such executions would now violate "community norms."

This legal formulation has its roots in a 1958 high court case, in which Chief Justice Earl Warren wrote that the Eighth Amendment, which prohibits cruel and unusual punishment, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Then yesterday, justices ruled that juries, not judges, must be the crucial determiners of whether a convict receives the death penalty. In doing so, they potentially overturned the death sentences of hundreds of death-row inmates held in states where judges make such rulings.

"These two opinions, taken together, demonstrate that there are serious problems in the way we've been imposing the death penalty," says Diann Rust-Tierney, director of the American Civil Liberties Union's Capital Punishment Project.

Next up for death penalty opponents: a fight against the execution of youthful murderers. In 1988, the Supreme Court ruled that it is unconstitutional to execute those who were younger than 16 at the time of their offense. A year later, justices declined to explicitly include 16- and 17-year-olds in this excluded category.

Opponents of executions believe the "national consensus" on this issue has changed since then.

"This is a prime opportunity to step back and look at the system as a whole and see if other issues need to be addressed," says Ms. Rust-Tierney.