Death penalty experts welcome O'Connor's comments on capital punishment 

Larry Margasak / AP 4jul01

WASHINGTON   -- Critics of the way capital punishment is administered say that Supreme Court Justice Sandra Day O'Connor helped their reform effort with her unexpected public skepticism on the issue.

O'Connor's remarks this week resonated strongly with members of a national committee studying the death penalty, composed of supporters and opponents who nonetheless believe it is administered unevenly.

The panel just last week recommended 18 reforms including new standards to ensure competent counsel for poor defendants and use of DNA testing when available.

"It's extraordinary that she's doing it because she has historically taken a strong position supporting the death penalty," said former federal prosecutor Beth Wilkinson, who won the death sentence for executed Oklahoma City bomber Timothy McVeigh.

In an interview, Wilkinson said of O'Connor: "She has the vantage point that almost none if us do."

O'Connor on Monday said in a speech that "serious questions are being raised" about the administration of the death penalty and suggested that innocent people may have been put to death.

She noted that 90 death row inmates have been exonerated by new evidence since 1973, commenting "the system may well be allowing some innocent defendants to be executed."

Despite supporting capital punishment in numerous rulings, O'Connor is considered by many as a swing vote on the issue.

Wilkinson is a member of the nationwide death penalty panel of the Constitution Project, a bipartisan education project based at Georgetown University.

Virginia Sloan, executive director of the project, said the recommendations last week had been sent to all Supreme Court justices, but she does not know whether O'Connor was reacting to them.

Several former judges are on the panel, along with defense lawyers, prosecutors, victim advocates and academics.

"She certainly has a lot of experience in hearing these cases," Sloan said. "She has decided a number of cases in favor of the death penalty and it's quite significant that she's expressing these kinds of concerns."

The court next fall will hear arguments on two major death penalty cases. A Virginia man is challenging his death sentence on grounds that his lawyer had formerly worked for the murder victim. A man on death row in North Carolina wants the court to ban executions of mentally retarded criminals.

Sen. Patrick Leahy, D-VT. and chairman of the Senate Judiciary Committee, said O'Connor "has been in a unique position to monitor the states' handling of death penalty cases. Her observations are powerful and illuminating.

"The fact that the Court is watching this issue and is troubled by the numbers of innocent people sent to death row should challenge the Congress to offer guidance," said Leahy.

Leahy and others have sponsored legislation that would guarantee access to DNA evidence, establish a panel to set standards for legal assistance and place Congress on record as opposing state execution of juveniles or mentally retarded convicts.

Last month, the high court overturned the death sentence of a Texas killer because the jury lacked clear instructions on how to weigh his mental condition.

O'Connor wrote the opinion for the 6-3 majority, saying the Texas trial court ignored the jury instruction guidelines set by the Supreme Court when it previously overturned the defendant's death sentence.

In addition to setting standards for competent defense counsel and access to DNA testing, the national panel recommended that all states have the option of a life sentence without possibility of parole.

Other recommendations included: no death penalty for juveniles and the mentally retarded; a narrowing of instances for applying capital punishment; and a study of whether there's racial bias in imposing the death penalty.

O'Connor says there are `serious questions' about fairness of the death penalty 

Brian Bakst / AP 3jul01

MINNEAPOLIS -- Supreme Court Justice Sandra Day O'Connor questioned the fairness of the death penalty, saying some death row inmates had inferior representation and may not have had access to DNA testing that could clear them.

"If statistics are any indication, the system may well be allowing some innocent defendants to be executed," O'Connor said Monday to the Minnesota Women Lawyers association.

Six death row inmates were exonerated and released last year, and 90 have been exonerated and set free since 1973, according to O'Connor, who has been a swing vote on several death penalty cases.

O'Connor said the growing availability of DNA testing may alleviate some concerns. But she said most states with capital punishment have not passed laws addressing post-conviction testing.

She also said defendants with more money get better legal defense. In Texas last year, she said, people represented by court-appointed attorneys were 28 percent more likely to be convicted than those who hired their own attorneys. If convicted, they were 44 percent more likely to be sentenced to death.

"Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used," she said.

Noting that Minnesota does not have the death penalty, O'Connor said, "You must breathe a big sigh of relief every day."

O'Connor made no mention of cases decided in the court's just-concluded term, including its intervention that ended the Florida recount in the presidential election. Outside the hotel where she spoke, a handful of protesters criticized O'Connor for her vote in the Florida case, which was decided 5-4.