John Roberts and the Death Penalty

Supreme Court Justice John Paul Stevens’ recent comments critical of the application of the death penalty led to me wonder what the future of capital punishment could be when John Roberts, President Bush’s nominee to succeed Sandra Day O’Connor, takes his seat on the bench this fall (I know he hasn’t been officially confirmed but there is no doubt in my mind that, barring any unforeseen scandal, he’ll be on the bench  in October).  The Supreme Court is the venue of last resort for wrongly convicted inmates and activists seeking to stay an execution, abolish capital punishment outright, or prevent its expansion.  For death penalty opponents, John Roberts may be a tough pill to swallow.

Some say Roberts’ record is insufficient to make a judgement on how he will vote on capital cases. On one hand, he is a Federalist Society conservative who, in his work in the Reagan Administration, wrote critically of death penalty appeals.  Roberts argued that the lengthy appeals process clogged the federal court system and delayed justice for people in cases throughout the system.  This suggests that he would be supportive of efforts to streamline the appeals process, perhaps by more strictly limiting their number.  This is bad news for wrongly convicted death penalty prisoners.  Conversely, though, Roberts did free legal work for a death row inmate, which suggests a willingness to keep people from being executed.

While noteworthy, I don’t think doing pro bono work for one death row inmate shifts the weight of heavy evidence, circumstantial though it may be, that we are poised to enter an era that takes a less compassionate view and accelerated application of the death penalty.  This is unfortunate because years of exonerations of death row inmates and new technology that can more scientifically prove guilt or innocence has exposed flaws and corruption in our criminal justice system.  It’s not a reach to believe the system has executed innocent people.  Our system is broken and, rather than fix it, we appear ready to push the accelerator even further.

Roberts’ possible position on the death penalty is in substantial contrast with O’Connor, who was often the pivotal vote in 5-4 capital punishment decisions.  She became skeptical of state administration of capital cases and came to be counted on to support barring the execution of mentally retarded killers and those who were juveniles when they committed their crimes.  While she never supported an outright abolition of the death penalty, she did believe there were limits to its application. 

Death penalty cases are a constant fixture of Supreme Court work.  Justices regularly deal with emergency appeals, sometimes filed at the last possible moment.  Recently, the Court has outlawed the death penalty to those who were juveniles at the time of their crime, overturned four death sentences, and ruled it was unconstitutional to force defendants to appear before juries in chains during a trial's penalty phase.  And the future is full of death penalty cases.  The Court will have at least four capital cases on their docket when they return to work in October.  Included among these cases is one that may open the door to new challenges to the death penalty by letting inmates have a new chance to prove their innocence with DNA evidence.

Given the numerous death penalty cases heard by the Court, John Roberts’ confirmation will have a dramatic impact on how the Court rules on capital cases and will mark the beginning of dark days for death penalty opponents.

©  Michael K. Fauntroy, August 10, 2005