This year, like the last five, has seen a stepped-up assault on the death penalty.
As 2005 comes to a close, the battle over capital punishment has shifted to five cases now before the U.S. Supreme Court and to the governor’s office in California.
Gov. Arnold Schwarzenegger is under pressure to grant clemency to Stanley “Tookie” Williams, a co-founder of the Crips gang and a convicted quadruple murderer. A number of Hollywood celebrities, whose general opposition to capital punishment is well-known, have taken up the cause.
The governor has agreed to hear arguments from both sides Thursday, but it can safely be said that clemency for Williams would be a huge boost for opponents of capital punishment. After all, if a quadruple murderer can’t be put to death, what argument is there for executing someone whose crimes are less severe?
While most Americans still profess support for the death penalty, it has been clear for some time that opponents of the death penalty are far more zealous than the penalty’s supporters. Hardly a month goes by without some new and often imaginative attempt to end capital punishment in this country.
That’s why the U.S. Supreme Court will hear no fewer than five cases this term testing some aspect of capital punishment. Two will be argued today before a court that still includes Justice Sandra Day O’Connor. It was O’Connor who, earlier this year, told an audience of female lawyers in Minneapolis that “if statistics are any indication, the system may well be allowing some innocent defendants to be executed.”
But O’Connor failed to offer a list of innocents who have been executed – probably because no such list exists. She was merely using her office to do what others have done before: suggest that because innocent men have been sentenced to death, some innocent persons must have been executed, or are about to be executed.
In recent years, the Supreme Court has been busy on the capital punishment front. It has tossed out sentencing schemes that left it to judges to decide life or death and barred executions of the mentally retarded and those who were under 18 when they committed murder.
The stakes aren’t quite that dramatic in the current death penalty cases, but the outcome of each will surely matter.
The two cases before the court today are among the most important of the term. In one (Kansas vs. Marsh), the court will decide whether the Kansas Supreme Court was right to strike down the state’s capital punishment statute as facially unconstitutional. The Kansas court ruled in 2004 that the state law was invalid because it requires the imposition of the death penalty even when the mitigating and aggravating factors in a specific case are equal.
The state of Kansas and the U.S. Attorney General will argue that the Kansas sentencing law is really no different than a number of other state statutes that have been found to be constitutional. They point out that a Kansas juror is free to consider all mitigating factors before reaching an individual decision on whether the death penalty is warranted.
In the second case, out of Oregon, the issue is whether a person who has been convicted in a capital case can present evidence suggesting he isn’t guilty of the crime. Typically, the sentencing hearing has been restricted to issues of whether or not the death penalty should be imposed. In this case, a defendant claimed he was entitled to present evidence of “lingering doubt” as to his guilt in the sentencing phase.
The Supreme Court’s resolution of these two cases would have immediate effects. Should the court uphold the Kansas Supreme Court decision, it would affect several states directly and limit the future power of all legislatures to write new laws. If it upholds the lower courts in the Oregon case, the court would potentially alter the sentencing procedures in all of the capital punishment states and greatly change the nature of sentencing hearings.
Given the scope of the relentless attack on the death penalty in the media and in the courts, we’re left to wonder not that the number of executions is declining, but that there are any at all.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
