The Supreme Court's Death Penalty Paradox

Currently, in the Washington, D.C. area, prosecutors from Maryland, Virginia, and the federal government are competing for the privilege of being the first to seek the death penalty against the beltway snipers. As unseemly as these acts of political one-upsmanship may be, who can argue that the punishment does not fit the crime?

The sniper duo, after all, has multiple premeditated, cold-blooded murders to answer for. They terrorized millions of people for weeks on end.

Meanwhile, this week, the writer/lawyer Scott Turow launched his new book Reversible Errors -- the story of a man wrongly convicted of capital murder and sentenced to death -- by announcing his conversion to death penalty abolition.

A former federal prosecutor, Turow used to consider the death penalty "an ugly necessity." But since then, Turow achieved the exoneration of a long time resident of Illinois death row, and has served on the commission to review the death penalty in that state. And now Turow has come to believe that constructing a fair and accurate system of capital punishment exceeds the grasp of human wisdom.

This is the fundamental paradox of the death penalty. For some ungodly reason, American society regularly produces human beings who commit monstrous crimes, the kind of crimes that leave most of us comfortable with idea of execution in individual cases. Yet when we look at the death penalty en masse -- that is, when we assess the DNA-validated statistical certainty of erroneous conviction (not to mention the issues of class and racial bias) -- many of the same people who would otherwise have been moved to support the death penalty, feel compelled to condemn the whole system.

The power of this paradox is tearing apart the Supreme Court.

The Way the Paradox Plays Out in the Supreme Court

Only a few years ago, a substantial majority of the Court's Justices was willing to let the death penalty operate with an ever shrinking level of judicial oversight. Yet although the composition of the Court has not changed, that laissez faire attitude now hangs by a single vote.

Last week, a bitterly divided Supreme Court refused by a 5-4 vote to reconsider the constitutionality of the death penalty for juveniles, a punishment that it expressly countenanced as recently as 1988, but that an increasingly vocal contingent on the court is beginning to passionately question. (The case was In re Kevin Nigel Stanford)

Usually decisions not to hear a case are unaccompanied by any comments from the justices. In this case, though, the four dissenters signaled their extreme displeasure in writing. Not only did they criticize the majority for refusing to reconsider the juvenile death penalty, but they also declared the "shameful practice" incompatible with a civilized society.

The Death Penalty Is Apparently Straining Courtesy Among the Justices

Part of the frustration and anger evident in the dissent surely stemmed from the fact that, ordinarily, four votes (equal to the number of dissenters) is sufficient to grant review of a case. Stanford, however, apparently did not fall under the usual rule.

Why? Unlike in the typical case, which comes up to the Supreme Court from the lower courts, here the death row inmate had applied directly to the Supreme Court for a writ of habeas corpus that would vacate his death sentence. Evidently, five votes are necessary to grant review of such a direct application.

One might have thought that at least one member of the Stanford majority would have accommodated the strong views of the four dissenters by agreeing to set the case for argument and decision on the merits. Should a technical distinction potentially cost a man his life? Stanford's is a death case, no matter how it reaches the Court.

And what about the touted current collegiality of the Justices? Couldn't one have lent a vote when it seemed to mean so much to the other four -- not to mean the death row inmate?