New Rules On Death Row

The court clamps down on multiple appeals

Twice, condemned killer Warren McCleskey has put his life in the hands of the U.S. Supreme Court. Now he's a two-time loser.

Four years ago McCleskey was the subject of the most important capital case of the 1980s. Armed with overwhelming statistical evidence that the State of Georgia imposed the death penalty more readily on the killers of whites than of blacks, he argued the system was unconstitutional. (McCleskey is black; his victim was white.) But the high court, in a 5-4 vote, found that the evidence didn't matter. McCleskey or any other prisoner would have to prove that the jury in his specific case was biased, a much more difficult legal hurdle.

Five days before his scheduled electrocution in July 1987, his lawyers discovered that years earlier prosecutors had planted an informant in a cell adjoining McCleskey's--a violation of the Sixth Amendment's right to counsel. McCleskey's lawyers had learned about this only because of a recent change in Georgia's open-records law. A federal trial judge stayed McCleskey's execution, scolded the prosecution for misconduct and ordered a new trial. But an appeals court reinstated the conviction on the ground that McCleskey should have raised the informant issue in his initial round of appeals in 1981, despite the fact that at the time his lawyers had no way of knowing about the state's secret plant. Once again McCleskey looked to the Supreme Court for relief.

Last week the justices turned him down, ruling that he had no legitimate excuse for failing to bring up all his claims earlier and that he probably couldn't show his innocence anyway. Clearly the court has become irritated with the seemingly endless numbers of appeals (known as habeas corpus petitions) filed by condemned inmates and the many years that go by before executions are carried out. McCleskey himself has been on death row since 1978. "Perpetual disrespect for the finality of convictions disparages the entire criminal justice system," wrote Justice Anthony Kennedy for the 6-3 majority. The decision means that prisoners in most cases, after exhausting state appeals, will get one and only one try in the federal courts.

A derisive dissent by Justice Thurgood Marshall accused the conservatives of an "unjustifiable assault" on the long tradition of habeas review. "The majority exercises legislative power not properly belonging to this court," Marshall wrote, noting Chief Justice William Rehnquist's unsuccessful efforts--supported by the Bush administration--to have Congress amend the habeas statute. "Respect for the rule of law must start with those who are responsible for pronouncing the law."

The day after the ruling, some legal experts predicted that the tumbrels would finally start to roll faster. But they've said the same thing other times--notably, following the first McCleskey decision--and it hasn't happened. Since the court reinstated the death penalty in 1976, executions in the United States have numbered no more than 25 a year, despite a deathrow population approaching 2,500. The backlog is intractable. Despite election-campaign rhetoric, there apparently isn't the political will to initiate a series of executions. Unless this latest ruling somehow motivates prosecutors, governors and lower-court judges, capital punishment will remain little more than an American illusion.