Washington -- With a grim passion, America holds on to its fascination with the death penalty -- devoted to it as an idea, determined to have it carried out sometimes, but troubled that it might become merely a routine. Those contradictions complicate the law, bedevil the politicians and leave much unsettled about death sentencing.
The reality is that, 17 years after the Supreme Court allowed America to experiment again with capital punishment, the country has not made up its mind fully about the political, moral, constitutional and emotional dilemmas that arise each time another murderer heads for an execution chamber. That is happening almost weekly now, and the rate may go up.
With Maryland about to join the 21 other states that have had executions since 1976, if it sends murderer John Frederick Thanos to the gas chamber, it has become Marylanders' turn to raise those same questions in the streets, in the political precincts, in the courts.
One of those questions, one of the most basic, is this: Will the states, frustrated by the way the death penalty works (or fails to work), abolish it altogether? If experience over the past 17 years means anything, a tentative answer already may be in: No.
There is still an abolition movement, fervent as ever in its opposition. But key figures among the abolitionists concede that they can no longer look to the Supreme Court to decree an end to executions, as movement lawyers once hoped so confidently they could.
"I can't imagine it any time soon," frankly concedes Vivian Berger, law professor and vice-dean at Columbia University Law School and a longtime leader in the American Civil Liberties Union's campaign to use the law to stop executions. An ACLU aide who now runs the organization's project against the death penalty, Diann Rust-Tierney, agrees: "I don't see abolition coming from this court."
No longer does the court have a justice calling for an end to death sentences, like retired Justice William J. Brennan Jr., and the late Justice Thurgood Marshall. While on the court, they voted against all executions and unsuccessfully sought to have the death penalty struck down as "cruel and unusual punishment."
Only two justices can now be expected, though not routinely, to oppose some executions: Justices Harry A. Blackmun and John Paul Stevens. Infrequently, Justices Sandra Day O'Connor and David H. Souter do, too. The most significant vote new Justice Ruth Bader Ginsburg has cast so far on any issue was a vote to delay a Texas execution last month, but it is too early to know whether that was the start of a pattern.
A clear majority of the court for years has voted to uphold death sentences and has gone far toward closing the federal courthouse door to appeals by state Death Row inmates looking for legal relief after using up their appeal rights in state courts.
Ernest van den Haag, for many years one of the nation's best-known academic supporters of capital punishment, now retired from Fordham Law School's faculty, says of the abolition movement: "I think it has been sort of marginalized. Its major attention was through the courts. They have been pretty much stymied; the issue has been pretty much laid to rest by the Supreme Court."
The movement, therefore, must now fight its battle in politics -- and that is an arena where there is little doubt that the dominant power is held by death penalty supporters. Regularly, seven out of ten Americans tell pollsters they favor the death penalty for murder.
In politics, the death penalty issue resonates like no other life-and-death question; not even abortion seems to have the same power over voters and politicians. It does so, Mr. van den Haag suggests, because vocal support for the death penalty is an easy proxy for a willingness to do something about crime. "For your constituents," he says, "you are seen as a fighter against crime" merely by speaking out in favor of death sentencing.
There is perhaps no better illustration of that, in any era, than the vivid one now being displayed here, in Congress. The Senate is pondering a broad new anti-crime bill, and a central feature of it would make the death penalty available for 47 federal crimes, including train wrecking. In the House, the leading Democratic bill would allow death penalties for 64 crimes -- the greatest expansion ever proposed at the federal level.
Among some advocates of the death penalty, that kind of effort is seen as grandstanding, not likely to result in significant increases of actual executions. Mr. van den Haag, for example, dismisses most political calls for capital punishment as having "no practical value whatsoever; it costs them [politicians] nothing."
One of Maryland's most visible supporters of the death penalty, Democratic state Del. Gerry L. Brewster of Towson, says political rhetoric over capital punishment usually involves "a phony debate" focusing on who is in favor and who opposed to it. That, he says, is "irrelevant, from a public policy point of view." What does count, he suggests, is whether the penalty is ever carried out.
Echoing sentiments that are heard in state after state when an execution is scheduled, and then is put off once more, Mr. Brewster remarks: "We have reached the point where we have it [the death penalty], but we don't." The Thanos case, he says, is a significant test for Maryland. "If Maryland can't muster the courage to implement it now, we ought to do away with it."
By some estimates, Delegate Brewster notes, it costs the state of Maryland $1.5 million to $2 million to prosecute a single murder case resulting in a death sentence and then to follow it on up through the courts. There are, he adds, some 24 points in the process where the death sentence could be thrown out. If not used, he argues, "the death penalty is a cruel and expensive hoax on the people of the state of Maryland."
Mr. van den Haag estimates that it takes seven to nine years, usually, from a murderer's conviction to execution.
The reason for the costs, and for the delay, can be traced primarily to a string of Supreme Court decisions since 1976. That was the year the court began allowing states to reinstate capital punishment, thus bringing to an end a moratorium on executions anywhere in America. Year after year since then, the court has issued new death penalty rulings, adding layers of complexity to the process.
It has done so, the court has said frankly, because it believes that "death is different" -- the one penalty that cannot be undone. To try to reduce the risk of error -- that is, to head off a potential execution of an innocent person -- the court has surrounded capital punishment with a bewildering puzzle of rules and
procedures that state courts have no choice but to follow. Among other constitutional requirements, every death penalty case must be reviewed by a state's highest court, whatever issues are at stake.
The rules commanded by the Supreme Court begin applying at the original murder trial and continue on through two potential trips through state appeals courts, and through what usually is a minimum of two trips through the federal courts after state procedures run out.
Supreme Court justices make it abundantly clear over and over again that, while they are annoyed by the complexity and the resulting delays, they would rather tolerate some of that than inadvertently contribute to a fatal mistake.
It is part of the two-centuries-old lore of the death penalty, known to the justices, too, that execution of the innocent is always a possibility. In the literature of capital punishment, it is easy to find references to the discovery in 1762 that Jean Calais was innocent of the murder for which he was executed in Toulouse, France. It has seemed a real risk ever since.
And the justices no doubt also are aware of the continuing debate, carried on mainly in the nation's law journals, over how many innocent individuals have been put to death in America's history. Two anti-death penalty professors, Hugo Adam Bedau of Tufts University and Michael E. Radelet of the University of Florida, stirred the debate on that topic to white-heat intensity with a law review article six years ago counting up "23 cases of persons we believe to be innocent defendants who were executed."
While that article still causes aroused reaction in the academic world, the idea of potential innocence of some Death Row inmates is also at the center of the debate in the political and judicial worlds over capital punishment.
Death penalty foes repeatedly recall the comment of Justice Marshall in 1973: "We have no way of judging how many innocent persons have been executed, but we can be certain that there were some."
And, earlier this month, an anti-death-penalty group based here, the Death Penalty Information Center, released a study -- done for a House Judiciary subcommittee -- reviewing the cases of 48 men released from Death Row over the past 20 years because of "significant evidence of their innocence." Among them was Kirk Bloodsworth, sentenced to die in Maryland in 1984 after being convicted of the rape and murder of a young girl. He was released earlier this year, after new scientific testing supported his claim of innocence.
Until this year, the Supreme Court had made clear repeatedly that while it would not allow state inmates to appeal their cases endlessly to the federal courts, the federal courthouse door would be kept open at least for a genuine claim of innocence -- especially for a Death Row inmate. The court cast that proposition into doubt, however, with a ruling in January denying a Texas inmate, Leonel Herrera, an opportunity to return to federal court with a fresh claim of innocence. Herrera then was executed in Texas on May 12.
The place to claim innocence, the court stressed in the Herrera decision, was at the original trial. If a Death Row inmate has no complaint about the trial, later-discovered evidence of innocence does not mandate federal court review, Chief Justice William H. Rehnquist wrote. The Constitution, he added, "does not require that every conceivable step be taken, at whatever cost, to
eliminate the possibility of convicting an innocent person."
That decision was a devastating loss for death penalty %o opponents, who had sensed that the "innocence" issue was one of their best remaining hopes for a continuing broad challenge to capital punishment. It was a loss equal in dimension to the court's 5-4 ruling in 1987, rejecting what was then seen as the last remaining attempt to strike down the death penalty as a whole: the claim that the penalty was unconstitutional because of built-in race bias, with those who kill whites far more likely to get the death sentence than those who kill blacks.
Although the court found no constitutional defect in that racial factor, the statistics on actual executions carried out since 1976 continue to suggest that race may still be a key to who gets the death penalty. In eight out of every 10 killings that led to an execution in 21 states over the past 17 years, the victims were white. The continuing data at least imply that, no matter what the race of the murderer, the race of the victim is what really matters at sentencing.
Death penalty foes, in addition to continuing to press the "innocence" issue and the question of a racial tilt in death sentencing, also are pursuing new constitutional complaints about executing mentally retarded people or individuals who were minors at the time of their crime, and challenges to specific methods of execution.
A California case that just began claims that execution by gas -- the only method available in Maryland, and an option in three other states -- is "cruel and unusual punishment." In Virginia, Death Row inmates are carrying on a similar constitutional challenge against execution in the electric chair, the only method used in 11 states, and an option in a 12th state.
More states, however, are shifting to the method of injecting lethal drugs as the only one available, or at least as an option. Twenty-two states now require or allow that method. That seems to be the favored method among the American public, according to some polls.
Lyle Denniston covers the Supreme Court and legal issues from the Washington bureau of The Baltimore Sun.