Following up pointed comments by Supreme Court Justice Sandra Day O’Connor, The New York Times last week reported on why private law firms are loath to take capital cases, and in doing so highlighted the need for a moratorium on the death penalty.

Justice O’Connor, during a speech a week ago in Minnesota, observed the number of people scheduled for execution who were later found to be not guilty of the crime for which they were sentenced. Her conclusion is the same one that occurs to just about anyone who looks at the issue: “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” She further commented that when these capital cases are overturned, the failure of the justice system could be traced to inexperienced or overworked public defenders.

So why don’t the well-heeled private firms take on these cases pro bono literally to save innocent lives? In the news report, Lawrence J. Fox, chairman of the American Bar Association’s Death Penalty Representation Project, said lawyers told him that the problems rests with the need for profits. “They’re saying they’re paying associates $125,000 a year and can’t afford to have someone off spending 1,000 hours on a death penalty case.”

The Innocence Protection Act, sponsored by Maine Sen. Susan Collins, attempts to address this problem indirectly. Without trying to tell states they are barred from executing people, the act aims to ensure equal protection without regard for whether a defendant can afford competent legal representation. The act would give convicted felons greater access to DNA, put Congress on record of opposing state executions of juveniles and the mentally

retarded – changes that don’t seem to be meeting much resistance – and would establish standards for lawyers representing those accused of death-penalty crimes, which is meeting plenty.

A reason for this may be that ensuring competent counsel may either force states to spend considerably more on public defenders or place a moratorium on capital cases until they figure out another way to provide the counsel. The death penalty has broad public support; members of Congress tinker with it at the peril of their political lives.

Justice O’Connor, however, gives them a reason to become bolder. In her 20 years on the court, she has defended states’ rights to administer the death penalty and voted to permit the use of the death penalty for teenagers. If she can look at the evidence today and see the strong potential for a miscarriage of justice, then so can members of Congress.

They should begin by passing the Innocence Protection Act, setting standards that should cause the 38 states with the death penalty to stop and rethink how they are applying this punishment.