Supreme Court Justice Sandra Day O’Connor questioned the fairness of the death penalty in a July 2 speech, saying, “the system may well be allowing some innocent defendants to be executed,” according to the Washington Post.

“Serious questions are being raised” about the death penalty, she said at the annual convention of Minnesota Women Lawyers.
Since she joined the Supreme Court in 1981, O’Connor said the number of inmates on death row nationwide has increased from 856 to 3,711 last year, according to the Minneapolis Star Tribune. One prisoner was executed in 1982, compared to 85 last year–a 20-fold increase, O’Connor said.
Six death-row inmates were exonerated and released last year she added, totaling 90 since 1973, the Star Tribune article read.
DNA tests could offer fairer administration of the death penalty, O’Connor said. Still, only nine of the 38 states with capital punishment have laws in place that address post-conviction testing, and only in a small number of cases. Since 1973, 10 of the 96 people released from death row established their innocence based on DNA evidence, according to a article.
O’Connor also raised concerns about legal counsel for defendants, saying defendants with more money received better legal defense, the Associated Press reported. Those represented by appointed defense attorneys in Texas last year were 28 percent more likely to be convicted than those who retained their own attorneys, O’Connor said, according to a Star Tribune report.
If convicted, she added, those with appointed attorneys were 44 percent more likely to spend time on death row.
“Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used,” O’Connor said.
Death row inmates in Georgia and Alabama are not guaranteed counsel, according to the New York Times.
Justice Ruth Bader Ginsburg also raised concerns about representation in capital punishment cases in an April 9 speech. Ginsburg said she has “yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial,” according to the Post.
O’Connor is widely recognized as a moderate on the divided court and as a “swing voter” in cases concerning abortion rights, religion, voting rights and the death penalty, read the Star Tribune article. However, in her 20 years as a Supreme Court justice, O’Connor has generally supported the death penalty.
“It’s the first time she has made remarks of this tenor (about the death penalty),” capital defense lawyer George Kendall, who is affiliated with the NAACP Legal Defense Fund in New York, told the Post. “She’s saying that there are serious problems with the administration of the death penalty.”
O’Connor’s July 2 remarks came exactly 25 years after the Supreme Court handed down a decision reinstating the death penalty following a brief hiatus, according to
The Supreme Court is set to hear two death penalty cases next fall, the Post reported. In the meantime, a bill is pending in Congress that, if passed, “would guarantee access to DNA evidence, establish a panel to set standards for capital defendants and put Congress on record as opposing state executions of juveniles and mentally retarded convicts.”
Minnesotans, she said, “must breathe a big sigh of relief every day” because the state does not have the death penalty, the AP reported.
Slightly more than 4,500 defendants have been executed in the United States since 1930, according to Bureau of Justice Statistics.
Jared Porter is BCE’s reporting intern.

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