Justice Powell's Predicament

Legal Times
October 2, 1989

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.''

These reflections are of particular interest in light of the recent release, by a Judicial Conference committee Justice Powell chaired at the request of Chief Justice William Rehnquist, of proposed federal legislation to make death-penalty litigation more fair, orderly-and final.

The Powell committee's proposal would allow states willing to provide death-row prisoners with lawyers to place time limits on their post-conviction appeals and limit them to a single set of habeas appeals through state and federal courts, ending the repetitive appeals that are now common.

Many opponents of the death penalty immediately denounced the proposal as "a rush to the gallows," in the words of the American Civil Liberties Union.

Rejecting this assessment, Justice Powell says that the objective is to give each prisoner sentenced to death "one opportunity, with competent counsel, to have a thorough review all the way to the United States Supreme Court."

He predicts that death-penalty litigation would still take years to work its way through the courts. But he says, "It should be more expeditious than what we have presently."

Would not more expedition mean more executions?more pulls on that switch? Why did Justice Powell spend much of his 82nd year devising ways to operate more efficiently a system he would rather see shut down?

''I think that as long as the death penalty is retained as a law that it should be enforced," Justice Powell explains. "There are many laws with which I disagree but as a judge I would vote to carry out."

Vexed by the repetitive, 11th-hour appeals and stay applications filed by lawyers desperate to stave off imminent executions of prisoners who have spent years on death row, he wants a more orderly process. And he finds it unseemly that, with 2,200 people on death row, only 118 have been executed since 1976, with an average of more than eight years from sentence to execution.

All this, the justice believes, undermines public respect for the judicial system: "It is operating in a way that the public doesn't understand and the lawyers can't explain."

Such reasoning will hardly satisfy those who find the death penalty not just morally troublesome but morally abominable and who find Powell's concerns trivial when measured against the stakes for death-row defendants.

The last thing they want is a fair, efficient process for culling out the minority of murderers so vicious that they qualify for execution under current laws. Even in the highly unlikely event that such a process could be devised, ardent opponents of the death penalty prefer the procedural bog that is the status quo.

Although about 300 defendants are sentenced to death each year there were only 25 executions in 1987, 11 in 1988, and 14 so far this year.

While the Powell committee seeks to give condemned prisoners, almost all of whom are indigent, competent lawyers (which many now lack) for state habeas review and automatic stays of execution, it seeks to thwart the delaying tactics that have kept many alive. Those whose sentences still stand after one full set of appeals through state and federal courts would be on a fast track to the death chamber.

The Powell proposal represents a good-faith effort to bring some rationality to the review process, but it is flawed by some troubling gaps.

Trial-Level injustice

With a mandate from the chief justice to address only post-conviction review, the committee did not touch on the most glaring injustice: the gross deficiency of the undercompensated, inexperienced trial lawyers appointed by the states. In Mississippi, for example, fees for court-appointed defense lawyers in capital cases are capped at an absurdly low $1,000, providing them strong incentives not to do the kind of thorough job that can make the difference between life and death.

The Supreme Court has been slack in enforcing states' constitutional obligations to provide indigent defendants with effective assistance of counsel. Gross errors by defense lawyers at death-penalty trials are commonplace. Some are caught on appeal; others are not. And the many defendants whose trial lawyers are not very good but deemed good enough by the courts are out of luck.

Thus, the current chaotic system of habeas review has one thing to recommend it: Prisoners who may have been condemned because of ineffective trial representation can stave off execution with repetitive habeas appeals and delaying tactics. Congress shouldn't deny them these weapons without guaranteeing them good trial lawyers.

In addition, the Powell proposal represents more a wish than a guarantee that the lawyers for post-conviction review would be any better than those at the trial level have been.

Also troubling is that the proposal would apply only to states that provide lawyers to death-row inmates in order to get the benefit of the restrictions on federal habeas review.

If this is a good bargain for states, can it be good for death-row inmates too?

Professor Albert Pearson of the University of Georgia School of Law says it can be. He served as reporter for the Powell committee, has represented capital defendants, and shares Justice Powell's doubts about the death penalty.

Pearson says that opponents of the death penalty who have assailed his committee's proposal are naive if they assume they will be better off without it. The alternative, he notes, may be that the Supreme Court on its own will translate its evident impatience with death-penalty delays into drastic new restrictions on habeas review--as it has started doing already-with no countervailing requirement that states give death-row prisoners lawyers for state post-conviction review. (The Court ruled in June that the Constitution imposes no such requirement.)

An American Bar Association task force has also been studying the death-penalty process and plans to issue a report next month, which may suggest solutions for some of the problems with the Powell committee's proposals. While members of Congress ponder these reports, they should also give some thought to the broader points Justice Powell made last week: The death penalty serves no useful purpose. It will serve no useful purpose no matter how much the review process is tinkered with. It is morally troublesome, it not worse. And it ought to be abolished.