Tag Archives: Death Penalty

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When Quick Justice Is No Justice at All

by Stuart Taylor, Jr.

Is there a constitutional right not to be executed for a crime of which you’ve been convicted but can now prove your innocence?

The question answers itself: Of course there is. But Assistant Attorney General Margaret Griffey of Texas gamely maintained the contrary in an Oct. 7 argument before the Supreme Court in Herrera v. Collins.

"Suppose you have a videotape which conclusively shows the person is innocent, and you have a state which, as a matter of policy or law or both, simply does not hear new evidence claims," Justice Anthony Kennedy asked. "Is there a federal constitutional violation?"

"No, Your Honor, there is not," Griffey responded, asserting that such an execution "would not be violative of the Constitution."

Wow. It is a measure of the death penalty’s current vogue that such a position could be maintained before the nation’s most august tribunal without provoking gasps of disbelief.

But the issue in Herrera is not quite as simple, and the state’s position not quite as absurd, as this exchange might make it seem. Rather, as Solicitor General Kenneth Starr contends in the Bush administration’s amicus brief, the central question is whether the settled constitutional rule against executing an innocent defendant "requires a state to establish a judicial, post-conviction mechanism for entertaining a prisoner’s challenge to his conviction on the basis of newly discovered evidence."

Starr’s answer is no: The states are not required by the Constitution-and federal judges are not permitted by the habeas corpus statute-to afford any prisoner even the most cursory hearing into newly discovered evidence, no matter how much doubt it may cast on his guilt.

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We Will Kill You Anyway

by Stuart Taylor, Jr

The American Lawyer

ON OCTOBER 17, AT 10:58 P.M., GOV-ernor L. Douglas Wilder of Virginia sent a message to prisoners on death row, one that says something about what we have come to as a society:

If you treat your guards with exceptional respect and courtesy, if you work hard and strive to reform, if you put yourself at risk to shield hostages threatened with death by prisoners wielding knives and to prevent the brutal rape of a nurse-if you do all this, we will kill you anyway.

They killed Wilbert Lee Evans almost on schedule that night, six minutes after Governor Wilder gave the go-ahead by spurning Evans’s clemency petition.

Wilder’s action was no surprise. He has a burning ambition for national office and reason to worry that he’d be Willie Hortonized if he spared a cop killer like Evans.

Earlier that evening the United States Supreme Court had sent a similar message when it denied a stay and turned aside Evans’s last appeal without comment.

In the eyes of the law, the Court seemed to be saying, a condemned man who heroically protected hostages during a prison break is no better off than if he had killed them. Rewarding good deeds and showing mercy isn’t the business of the courts. Try the governor.

Justice Thurgood Marshall’s scathing, solitary dissent, calling the imminent execution "dead wrong," gave Evans some comfort. "Please bury this with me," he wrote in a childlike scrawl on his copy ofthe dissent. He needed help spelling "bury." He stuffed the opinion in his pocket before walking into the death chamber.

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Justice Powell’s Predicament

by Stuart Taylor, Jr.

Like most Americans, Lewis Powell Jr. had never given much thought to the death penalty.

Then, in 1972, he joined the Supreme Court. Since then Justice Powell, who retired in June 1987 at the age of 79, has thought about it quite a bit.

He has adhered to his view that nothing in the Constitution bars governments from putting vicious murderers to death. But he has pondered what happens after all the appeals have been litigated and the stays of execution have run out and the prisoner’s head has been shaved.

"I just can’t imagine having the job of pulling the switch on someone in the electric chair," Justice Powell said in an interview last week in his Supreme Court office.

He also has come to believe, contrary to his initial assumption, that "capital punishment has not deterred murders." They have continued at a "shocking" 20,000-a-year pace, he notes, since he helped reinstate the death penalty in 1976.

"It’s perfectly clear that if I were in the legislature now, in view of the extended litigation and the ineffectiveness of the way the system operates, I would vote against the death penalty," Justice Powell concludes. "I would be inclined to vote against it in any event. We are the only Western democracy that still retains the death sentence… We have a system that isn’t working, and I doubt very much whether you could ever by law create a system that would work at the present stage of our civilization."

He adds that he has "moral concerns as well as legal.” Asked to elaborate, he pauses, groping for the right words, and says quietly, "The taking of human life is something that I’d rather leave to whomever one thinks of as God.”