WASHINGTON -- The death penalty kept the Supreme Court working late this week. Twice the justices responded to the pleas of death row inmates, hours away from execution, not only by granting last-minute stays of execution but also by accepting their cases for full argument and decision.
One case, which quickly generated national attention, posed the question of whether Florida's unreliable electric chair presented such a risk of "physical violence, disfigurement and torment" as to amount to unconstitutionally cruel and unusual punishment. The other case raised the question of whether the new federal habeas corpus law eliminated federal judges' discretion to consider issues the inmate failed to present at the state court level -- even if the state itself, by suppressing relevant evidence, had made it all but impossible for the inmate to do so.
This was an unusual flurry of after-hours activity, especially for a week when the court had no public business scheduled and was technically in recess. It brought to four the number of death penalty appeals the court will hear this term, with the other two also having been granted in the context of last-minute stays of execution, and led some death penalty opponents to raise the question of whether the court might be about to shift course on capital punishment.
The answer to that question is almost certainly no. No current member of the court adheres to the view long held by Justices Thurgood Marshall and William J. Brennan Jr. that the death penalty is an affront to a civilized society, let alone the position adopted by Justice Harry A. Blackmun at the end of his career that the "machinery of death," as he called it, is simply not as fair in practice as the court had deemed it to be in theory by upholding new state death penalty laws in 1976 and permitting the states to resume executions.
Rather, there are at least two other explanations for the sudden visibility of death penalty cases on the Supreme Court's docket. One is the record pace of executions, which is channeling to the court ever more petitions from inmates who have run through their final round of appeals. While it took 12 years after 1976 for the states to carry out 100 executions, there have been 82 executions in the first 10 months of this year, a pace unequaled since the early 1950s.
The second explanation is the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, a law aimed in part at curbing the ability of federal judges to second-guess state courts and the ability of state prisoners to file one petition for a writ of habeas corpus after another, challenging the constitutionality of their convictions or sentences. While the goal of Congress was clear, the language and structure of the bill it passed, as the result of last-minute compromises and with little public scrutiny, were much less so, and the lower federal courts are in considerable disarray over how to interpret central provisions of the law. Conflicts among the federal appeals courts -- on any subject -- present the strongest possible case for Supreme Court intervention.
Two of the four death penalty cases raise questions under the 1996 law, including the case the court granted Thursday night barely an hour before Virginia was scheduled to execute Michael W. Williams, convicted of a double murder. The question in that case, Williams vs. Taylor, No. 99-6615, is the meaning of a provision that strips the federal courts of the power even to hold a hearing to determine the facts of any issue that an inmate seeking habeas corpus "failed to develop" in prior state court proceedings.
At the heart of Williams' case was an undisclosed plea agreement that the prosecution had made with his co-defendant, who testified against him, along with an undisclosed psychiatric report that might have impeached the co-defendant's credibility. A federal district judge in Alexandria granted a hearing on these issues, reasoning that the state's failure to disclose the information excused the defendant's earlier failure to "develop" the issue, but the 4th U.S. Circuit Court of Appeals, in Richmond, Va., rejected that analysis and directed the District Court to dismiss the petition.
The 4th Circuit's interpretation of other provisions of the 1996 law is at issue in a second Supreme Court appeal that was argued Oct. 4. That case, confusingly, is also called Williams vs. Taylor (No. 98-8384); the two inmates happen to share the last name Williams, while the Taylor is John B. Taylor, warden of the state prison in Waverly, Va.
A third death penalty case, Weeks vs. Angelone, No. 99-5746, is also from Virginia, raising a question of whether the trial judge was obliged to clarify a sentencing instruction that, while constitutional, evidently left the jury confused.