O'Connor, a backer of the death penalty, said the fact that 90 death-row inmates have been exonerated since 1973 shows "the system may well be allowing some innocent defendants to be executed."

Over the past 25 years, state governments have officially put more than 700 people to death. On June 11 the federal government executed Timothy McVeigh--its first execution in four decades--and eight days later took the life of Juan Raúl González.

In the past Justice O'Connor voted to permit the death penalty for teenagers convicted of murder and backed court rulings making it more difficult for workers and farmers on death row to have their state sentences overturned in federal court.

Questions dominating the debate in the big-business media and among capitalist politicians, judges, and others revolve around whether the state should be allowed to execute mentally incompetent people, the impact of poor legal representation, and "whether the death penalty is being fairly administered in this country"--as O'Connor delicately referred to the large percentage of death-row inmates who are Black or Latino.

The more defensive position manifest in a growing number of such statements highlights the difficulties the U.S. ruling class is having in continuing to justify this weapon of terror against working people. It takes place in the context of ongoing struggles across the country against police brutality--including on-the-spot executions by cops.

In her talk O'Connor alluded indirectly to the class character of the justice system and the imposition of the death penalty. "Perhaps it's time to look at minimum standards for appointed counsel in death cases," she said, "and adequate compensation for appointed counsel when they are used" because there is a gap in the legal defense available based on wealth.

Pointing to the state of Texas, O'Connor said that in capital cases defendants with appointed attorneys are 28 percent more likely to be convicted than those with their own lawyers, and 44 percent more likely to be sentenced to death after conviction.

Ruth Ginsburg, another Supreme Court justice, said in an April 9 speech in Washington that 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." Justice Stephen Breyer told Radio France International recently that "there is much more discussion about capital punishment now in the U.S. than there was five years ago."

Two cases are before the Supreme Court in its next term. One has to do with the execution of people classified as mentally retarded and the other with a defendant's claim of unsatisfactory legal representation and conflict of interest because his court-appointed lawyer had previously worked for the murder victim.  
 
Waning support
The capitalist press has taken note of the waning support for the death penalty. "Public opinion polls in the last few years have shown a softening in Americans' support for the death penalty," noted an editorial in the July 5 New York Times, "due partly to a growing unease that procedural shortcuts may be leading to the execution of innocent defendants." The paper's editors, who have opposed capital punishment, add that "reforming" the death penalty "is ultimately an unsatisfactory quest. Abolition should be the goal."

Given the growing opposition and exposures around a number of frame-ups of individuals on death row and the inability of most people facing the death penalty to receive a fair trial, there are a number of moves underfoot to try to clean up the justice system in death penalty cases.

The U.S. Senate is conducting hearings on a bill called the Innocence Protection Act, which would put Congress on record as opposing state executions of juveniles or mentally retarded convicts; guarantee access to DNA evidence, which has been used to exonerate a number of death-row inmates; and set up a panel to recommend standards of legal representation in death penalty cases.

A Committee to Prevent Wrongful Executions, made up of judges, former prosecutors, former FBI director William Sessions, and others working for the U.S. judicial system, released a report in June containing a number of proposed reforms to try to refurbish the image of the death penalty.

"If you're going to have a death penalty, you had better be sure you have the right person and this is a person who deserves to be executed," committee member Gerald Kogan, a former Florida Supreme Court judge, told the press. Beth Wilkinson, the federal prosecutor who sought the death penalty in the case of Timothy McVeigh, added: "The idea is, how to make the system work." The committee's proposed reforms are along the same lines as the Senate bill.

Since Illinois governor George Ryan declared a statewide moratorium on the death penalty last year, there have been other proposals by capitalist politicians in various states and in Congress to declare a moratorium on executions.  
 
International pressure
On another front, nine former senior U.S. diplomats filed a supporting brief in the case being appealed to the Supreme Court of the planned execution of Ernest McCarver, a mentally retarded man with a reported IQ of 67. They called state killing of mentally retarded people a "cruel and uncivilized practice" and said it subjects U.S. diplomats to "daily and growing criticism from the international community."

Carrying out the execution of McCarver "will strain diplomatic relations with close American allies, provide diplomatic ammunition to countries with demonstratively worse human rights records, increase U.S. diplomatic isolation, and impair other United States foreign policy interests," the diplomats said. They were concerned such interests would be undermined by a practice that "tarnishes America's image as the champion of human rights," New York Times reporter Raymond Bonner wrote in a June 10 article. "Human rights" is a propaganda banner under which Washington has carried out military interventions and other foreign policy.

The top U.S. diplomats include Thomas Pickering, the "informal dean of the American diplomatic service who held more ambassadorial posts than anyone in United States history," the Times reported. Pickering called the filing of the brief "unusual, and probably unprecedented."

Felix Rohatyn, U.S. ambassador to France for four years, complained that for the entire time "there was not a single speech I made where the first or second question was not: 'How can you people do this? Why do you execute the mentally retarded? Why do you execute minors? Why are there so many minorities on death row?"

How isolated the U.S. ruling class is among imperialist powers in its use of the death penalty can be seen in Europe, where the European Union has made the abolition of the death penalty a condition of membership. Virtually every country in Europe has outlawed or suspended capital punishment. In Rome, the Colosseum is lit up for 48 hours every time the sentence of a death row inmate is commuted.

At several stops during his recent trip to Europe, Bush was met by demonstrators condemning Washington for using the death penalty.
 

A June 6 report released by the U.S. Department of Justice draws the conclusion that racism is not a factor in the imposition of the death penalty in federal cases. U.S. attorney general John Ashcroft used the report to claim that there is "no evidence of racial bias in the administration of the federal death penalty" and even argued that Blacks and Latinos are less likely than whites to be executed by the state.

As attorney general, Ashcroft is supposed to sign off on each death penalty case, as his Democratic predecessor Janet Reno did with determined persistence. The study gives good marks to the supposedly unbiased character of this review process by explaining the attorney general approved the death penalty for "38 percent of White defendants, 25 percent of Black defendants, and 20 percent of Hispanic defendants." Figures like that seem hard to argue against. Case closed.

But it takes 25 pages of small type, twisted logic, and hopes that working people will not notice the class character of how the entire "justice" system operates in capitalist America for the study's authors to defend their conclusion. This is because the federal government has a hard time explaining away one fact: of the 19 people currently on death row under federal jurisdiction, 16 are Black or Latino.

Of the 682 cases in which federal prosecutors proposed defendants be given the death penalty between 1995 and 2000, 134 or 20 percent were white, 324 or 48 percent were Black, and 195 or 29 percent were Latino. The authors of the study admit in passing that these figures show the "proportions of Black and Hispanic defendants were greater than the proportions of Blacks and Hispanics in the general population."

The report explains that the federal government greatly expanded the number of crimes punishable by the death penalty under the Clinton administration and that these offenses, such as drug-related murders, are weighted heavily toward actions for which Blacks and Latinos are more likely to be arrested and prosecuted. "Both common experience and empirical data indicate that the offenses that may lead to homicides and capital charges are not evenly distributed across all population groups," the Justice Department report says. Because of this, there "is no reason to expect that the racial and ethnic proportions in potential capital cases will be the same as, or similar to, the racial and ethnic proportions in the general population."

Three people on death row under federal jurisdiction were convicted under the Anti-Drug Abuse Act of 1998 on murder charges. All others are on death row under the Clinton-era Violent Crime Control and Law Enforcement Act of 1994 on murder convictions. The report states that the "federal offenses for which the death penalty is currently authorized require as a necessary element the killing of a victim, but they include a few non-homicidal offenses such as treason and espionage.

There is no racism involved, the report says, because "in a federal district that prosecutes a large number of securities fraud cases, a finding that the defendants in these cases are practically all White would not imply that federal prosecutors in these cases are engaging in favoritism to potential Black and Hispanic defendants, or discriminating against White defendants. Rather, it may just be the case that most persons who commit these crimes in the district are White. Account must be taken of differing incidences of crimes in different demographic groups."

The report doesn't address the question of why the death penalty is not applied in security fraud cases but is applied in a defined number of murder cases. --G.M.  
 
 
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