Legal Scholars Predict Increase in Executions

THE United States Supreme Court's unprecedented action in the Robert Alton Harris case symbolizes a hardening stand on capital-case appeals that holds major implications for the nation's 2,500 people on death row.

While few predict a sudden surge in executions, experts say the court's growing impatience with multiple and last-minute petitions by condemned killers and a backlog of capital cases moving through the system means a likely increase in the number of prisoners put to death in the 1990s.

At the same time, the Harris case has resolved some major legal issues surrounding the death penalty and removed the psychological barrier to executions in a state that has the second-highest death-row population.

"It has significant implications partly because the Supreme Court gave such a strong signal of impatience with the Ninth Circuit Court of Appeals," says Laurence Tribe, a professor of constitutional law at Harvard University. "That clearly is going to give people second and third thoughts before anything resulting in this sort of maneuvering...."

In a duel rare in judicial history, a faction of largely liberal judges connected with the US Ninth Circuit, a federal appeals court in the West, maneuvered behind the scenes in the nocturnal hours of Monday and Tuesday seeking to give every conceivable issue raised in the Harris case a fair hearing. The actions resulted in the delay of the execution for six hours, but eventually the Supreme Court overturned each stay and delivered, in the end, an unprecedented ruling forbidding any federal court from fu rther meddling in the execution.

The pointed rebuke was just the latest sign of the high court's weariness over what it believes are unwarranted delays in deciding capital appeals. In recent years, the justices have issued several decisions sharply restricting the ability of condemned prisoners to bring challenges after first-round appeals are exhausted in state courts.

They have held, among other things, that prisoners can't bring more than one challenge except in certain circumstances, such as to show actual innocence. In considering Harris's last claim - that death by the gas chamber is cruel and unusual punishment - the tribunal said the appeal could have been brought more than a decade ago and noted pointedly that there was no good reason for the last-minute "abusive" delay.

"I think the very clear message is, let's get on with it," says Gerald Uelman, dean of the Santa Clara University School of Law. "Let's get on with the killing. We are not going to have much patience with last-minute delays."

Death-penalty supporters have been heartened by the Supreme Court's actions. Even before the wee-hour reprieves temporarily granted by members of the Ninth Circuit, proponents had come to view the Harris case, after 14 years in the courts, as the epitome of what is wrong with the judiciary's handling of capital cases - too many "frivolous" and last-minute petitions.

Opponents, though, view the acceleration of the appeals process as a recipe for mishandling cases and the possibility of people being executed who shouldn't be.

To many scholars, the phone and fax duel between judges in the West and Washington, D.C., in the Harris case underscores how politicized the judiciary is becoming on the issue of capital punishment.

Moreover, as the pressure builds to process cases more quickly, the ambivalence that exists in the judiciary and has produced the most visible defiance in the Ninth Circuit may produce even greater clashes.

"I think there is a real potential for conflict," says Franklin Zimring, a law professor at the University of California at Berkeley.

Nor is the debate confined to the court system. In the aftermath of the Harris case, death penalty supporters are renewing their push in Congress to streamline the federal appeals process.

Many scholars say the changes in procedures, coupled with the growing numbers of capital cases moving through the system, will lead to more executions in the future. Up to now, the numbers have remained stable - usually less than two dozen a year.

"We are going to have the spigot open soon," says John Poulos, a law professor at the University of California at Davis.

Others are more skeptical. Bruce Fein, a constitutional lawyer and death-penalty supporter in Washington, D.C., says juries are not clamoring to impose death sentences and plenty of legal safeguards and avenues for clemency are still built into the process.