The New York Times

Tuesday, July 1, 1997

Death Outside the Constitution

The idea of upholding a death sentence imposed after an unconstitutional hearing should trouble even ardent supporters of the death penalty. But In one of the most unjust rulings of the term, the Supreme Court declined, by a 5-to-4 vote, to order a new sentencing trial for a convicted murderer even though his 1988 sentencing proceeding was plainly unconstitutional under a decision the Court issued six years later.

Joseph O'Dell, who was convicted of a brutal rape and murder, was sentenced to death after the prosecutor persuaded a Virginia jury that he would be dangerous in the future. Mr. O'Dell's lawyers had been prevented from advising the jury that, if it rejected the death sentence, Mr. O'Dell would have been given life without parole. in a 1994 case from South Carolina, the Court addressed this issue by ruling that a capital defendant who is depicted as a future threat to society has a due-process right to have the jury informed that he will never be let out of prison. In refusing to apply that sound decision to cover Mr. O'Dell, the Court did not challenge the unconstitutionality of Mr. O'Dell's sentencing proceeding. Instead, the ruling by Justice Clarence Thomas invokes a docket-clearing technicality -

the Supreme Court's principle that a "new rule" of constitutional law should not be available to state prison inmates who are seeking Federal court review through petitions for a writ of habeas corpus.

Think about the cruel absurdity of that judgment. Mr. O'Dell now stands to be put to death because his trial was conducted before the Court's pertinent 1994 decision, which the Court now says announced a "new rule." In an elegant dissent, Justice John Paul Stevens argued that the "right to respond to an inaccurate or misleading argument" - in Mr. O'Dell's case the prosecutor's warning that Mr. O'Dell would pose an ongoing danger if not killed by the state - "is surely a bedrock procedural element of a full and fair hearing."

This is the second time in a month that the Court has upheld a death sentence based, in part, on an unconstitutionally conducted sentencing procedure. That may promote the Court's effort to curb Federal judges' authority to review state court convictions, but it is not justices