ALTHOUGH abortion rights have dominated the debate over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court, there is another issue implicating the "culture of life" that has garnered fewer headlines: capital punishment. The impending executions of three men in California, including the lethal injection of reformed ex-gang leader Stanley Tookie Williams scheduled for Dec. 13, are a sober reminder of the irrevocable stakes in this area of law.
Capital cases make up a substantial portion of the Supreme Court's docket each year. From 2000 to 2005, the court decided only three cases involving abortion but more than three dozen cases involving the death penalty. In this area, the Supreme Court often serves not only in its typical role of deciding unsettled questions of broadly applicable law but also as a court of last resort to correct errors and prevent injustice in individual cases.
Capital proceedings are often fraught with error. In recent years, the Supreme Court -- with the assent of Justice Sandra Day O'Connor, whom Alito would replace -- has invalidated several convictions and death sentences because of misleading jury instructions, poor lawyering, racial discrimination in jury selection and prosecutorial misconduct.
So what do we know about Alito's views on this issue? During his 15-year career on the U.S. 3rd Circuit Court of Appeals, Alito participated in 10 capital cases. Five were decided unanimously by three-judge panels and involved fairly straightforward issues. The other five provoked strong differences of opinion between Alito and his colleagues.
In every one of the five contested cases, Alito voted against the inmate and issued an opinion. Individually and especially as a whole, these opinions show a troubling tendency to tolerate serious errors in capital proceedings. Whatever one may think of the death penalty, Alito's record should give pause to all Americans committed to basic fairness and due process of law.
Perhaps most telling is a 1997 case involving two men, Clifford Smith and Roland Alston, who robbed a Pennsylvania pharmacy. During the robbery, one of them shot and killed a pharmacist. Smith was charged with capital murder. But instead of showing that he was the shooter, the state alleged that the two men were accomplices, making each liable for the acts of the other under Pennsylvania law.
To convict Smith of murder on this theory, the state had to prove that he intended the killing to occur. But the trial court's instructions to the jury failed to make this clear, suggesting instead that Smith could be found guilty of murder even if he intended only the robbery and never intended the killing. The jury convicted Smith of murder and sentenced him to death.
In the 3rd Circuit, two members of a three-judge panel -- both former prosecutors appointed by President Reagan -- agreed that the faulty jury instructions denied Smith a fair trial. They concluded that there was "a reasonable likelihood that the jury convicted Smith of first-degree murder without finding beyond a reasonable doubt that he intended that [the victim] be killed."
Alito dissented, calling his colleagues' opinion "shocking" and "far-fetched." He conceded that the instructions were "ambiguous" and "inadvisable." But he nevertheless found them adequate to convict Smith of a capital offense because, he argued, the trial court had properly stated the intent requirement in an earlier part of the instructions. Alito further argued that the court should not have heard Smith's claim at all because Smith's lawyers did not object to the jury instructions at trial or in prior appeals. What is disturbing is that the state itself never made this argument; Alito raised it on his own, violating basic principles of fairness and judicial restraint.
In 1995, Alito again excused defective jury instructions in two cases brought by death row inmates William Flamer and Billie Bailey. Under Delaware law, a capital sentencing jury is supposed to weigh any aggravating circumstances of the crime against any mitigating circumstances in deciding whether to recommend death. Although a Delaware statute lists certain aggravating factors that make a defendant eligible for death, the jury is not required to focus on those listed factors in making its final decision. In fact, jurors may ignore those factors, if they choose to, and consider others.