JUSTICE O'CONNOR'S DEATH PENALTY REGRETS — AND RESPONSIBILITY

Editorialists across the country lauded Justice Sandra Day O'Connor last week after she told a Minnesota women's group that she harbored reservations about how states currently administer the death penalty.

Certainly some praise is due. In a rare exhibition of public candor, O'Connor acknowledged that our system of capital punishment regularly sentences innocent persons to death, and that many of those who receive death sentences would have received a lesser punishment, if only they had had better lawyers at trial.

But pardon me if I hold the applause. Whatever credit O'Connor deserves for her expression of concern, it must be tempered by a bitter sense of irony. O'Connor tells us that our system of capital punishment is inaccurate and biased against indigent defendants who lack the means to hire skilled counsel. Yet O'Connor, as much as any Justice of the modern era, must bear responsibility for refusing to recognize and, indeed, for exacerbating the very problems she now, belatedly, decries.

In the wake of DNA evidence proving the innocence of 90 death row inmates (and counting), O'Connor admits the likelihood that states have executed innocent persons. Yet from the very instant O'Connor joined the Court, she has been a leading force for cutting back on federal court supervision of death penalty cases, and for upholding state court procedural restrictions on the ability of death row inmates to challenge their convictions — even on the ground of newly discovered evidence.

Indeed, even before she joined the Court, O'Connor was an outspoken critic of the federal writ of habeas corpus — which is the mechanism that death row inmates use to challenge the legality of their state court convictions and sentences in federal court.

According to O'Connor, federal court review of state court criminal cases produces a "strange" and "imperfect" duplication of judicial effort that demeans the quality of state court justice. (In reality, federal courts sitting in habeas cases usually supplement, rather than duplicate, the efforts of state appellate courts — whose judges, often overworked and facing re-election, rarely have the time or the inclination to consider arguments that might mean setting defendants free.)

Immediately upon reaching the Court, O'Connor authored several significant opinions cutting back on the availability of habeas corpus. And in Barefoot v. Estelle, she also provided a crucial fifth vote for allowing federal courts of appeals to use a fast-track system for considering habeas petitions in death penalty cases.

In that case, the Court held that it was perfectly fine for a federal court of appeals to give a death row inmate's lawyers a mere two days to brief and argue their client's case. By comparison, a lawyer in a civil matter, with only money at stake, would enjoy several months preparation time.