A page turned in the capital punishment debate

Lethal injection was widely adopted in the 1980s and 1990s in response to legal attacks on the gas chamber and the electric chair. Justice John Paul Stevens wrote that the earlier methods were needlessly cruel given that the experts agreed that lethal injection was far more humane. Supporters of capital punishment agreed to adopt the method just to end the litigation, and it did for a time.

Beginning in 2005, two issues regarding lethal injection came up that halted executions for varying lengths of time in different states. There was a concern that, if the first of three drugs was not properly administered, the inmate might not be sufficiently sedated by the time the third, potentially painful, drug was injected. Also, a supply problem developed with sodium thiopental, the sedative drug all the states were using. Switching to a single drug eliminates the first problem, and switching to a widely available one eliminates the second. Ohio is the first state to do both, but others will surely follow.

As the injection litigation draws to a close and states resume executions, it is time to reconsider the lengthy delays elsewhere in the process. Why do we allow 20 years of litigation in cases with no question of guilt of the crime? What concern justifies such a delay of justice and such an expenditure of resources?

Capital cases are complex, but the complexity does not inherently require decades of litigation. The D.C. Sniper was executed less than six years after sentence, and that case was as complex as they come. His claims were fully reviewed by both Virginia and federal courts. Resolution within this time frame is not unusual in Virginia.

Certainly any claim that a capital defendant is actually innocent in the basic “you got the wrong guy” sense should be investigated for as long as it takes, and the sentence should be commuted if any realistic doubt remains. Such cases are rare, though. 

Most of the post-trial litigation in capital cases involves claims that go only to the sentence, and often the issues have little relevance to the crime. The most common claim is that the defense lawyer did not present information about the defendant’s background, such as the notorious “abuse excuse.”

Such claims should be reviewed once, but why do we permit multiple reviews? Are we worried about a case where the defendant intentionally killed the victim, is not a minor, is not retarded, is not insane, and was found by the jury to be fit for execution, and yet there is some previously unknown mitigating circumstance so compelling that all reasonable people would agree it would be an injustice to carry out the sentence?

In a quarter century of litigating capital cases, I have never seen that case. In every capital case I have worked on, when all is said and done, death remains a just punishment for the crime the defendant chose to commit.

In its 1996 reform of habeas corpus, Congress went too far cutting off claims of actual innocence but not far enough in curtailing litigation that goes only to the sentence. Repeated reviews of sentence-only claims should simply be abolished. This single, simple step would go a long way toward effective and timely justice in the very worst cases of murder.

Kent Scheidegger is the legal director of the Criminal Justice Legal Foundation.