Tribune Chronicle: Editorial

Friday, July 13, 2001; Page 6A

On July 2 in Minnesota, U.S. Supreme Court Justice Sandra Day O'Connor foreshadowed a seismic and positive change in our nation's use of the death penalty. Telling Minnesotans they must "breathe a big sigh of relief every day" because their state does not have the penalty, O'Connor said she had "serious questions" about the administration of the death penalty in America.

So do we.

Concerns about the fair imposition of the death penalty have been voiced throughout the past 40 years by several of the more liberal jurists on the court, most recently in an April speech by Justice Ruth Bader Ginsburg. Illinois Gov. George Ryan, a Republican, said he also had such concerns, leading him last year to issue a moratorium on executions in his state.

O'Connor, however, as the pivotal swing vote on the sharply divided high court, could play a far more important role than Ryan in ensuring the death penalty is only used when the accused is competent and his or her trial was fair and guilt is certain.

In two cases the court has agreed to hear in the coming year, O'Connor has the tremendous opportunity to restore a semblance of justice to the justice system in America.

In one case, Ernest P. McCarver waits on North Carolina's death row for resolution to his case. His lawyers place his I.Q. at 67 and say he is mentally retarded. Lawyers for McCarver say the execution of the mentally retarded is cruel and unusual punishment in violation of the Eighth Amendment, and we agree. Twelve of the 37 states that impose the death penalty currently ban such executions, so half the nation already protects mentally retarded people from execution.

The last time the Supreme Court considered this issue, O'Connor upheld the execution of the mentally retarded. McCarver's case gives her the chance to reconsider the issue, and we urge her to do so.

In the other case, the court-appointed attorney for Virginia death row inmate Walter Mickens Jr. had previously represented the teen-ager Mickens was accused of killing. The judge who appointed the attorney to represent Mickens had appointed the same attorney to represent the teen in an unrelated matter just days before his death. Mickens was never told about this clear conflict of interest.

In Ginsburg's April speech, she made clear the impact that the quality of counsel has in capital cases: "People who are well represented at trial do not get the death penalty."

A state that offers death as its ultimate punishment must ensure that every defendant in a capital case is represented by a capable attorney who has only the interests of his or her client in mind. O'Connor was right when she suggested in her speech, "Perhaps it's time to look at minimum standards for appointed counsel in death cases."

And perhaps O'Connor and the court will soon respond to Americans' concerns about the fair use of the death penalty.