For the last decade, the justices have sharply curtailed the right of condemned inmates to have federal courts review their appeals. Last week the full impact of those rulings hit home in the case of Frank McFarland. In late 1989 McFarland was sentenced to die for killing a Tarrant County, Texas, waitress. State appeals ran out last year, and McFarland’s execution was set for the fall. But he was still entitled to an entire round of appeals in federal court, where death-row inmates win about 40 percent of the time. Because he was indigent, he was guaranteed court-appointed counsel. Nonetheless, McFarland came within hours of the death chamber.

With the help of a capital-defense organization, McFarland had asked two federal courts to step in. They refused to block his execution or appoint a lawyer to prepare an appeal until he actually filed an appeal. That, of course, is what he needed the lawyer for in the first place. Alice had easier predicaments in Wonderland. McFarland could have tried to draft his own papers, and a judge might have deemed them good enough to delay the execution. But if McFarland eventually lost, he then would have forfeited any chance to file new, improved papers because the Supreme Court has limited state inmates to only a single round in federal court. McFarland survived only because the Supreme Court intervened.

Technically, the justices will be dealing only with the power of lower-court judges. But as last week’s argument showed, the case forced them to confront the bizarre system of capital punishment that they’ve devised over the past two decades. While more than 2,800 inmates reside on American death rows (table), only a few dozen are executed each year. Voters, prosecutors and legislators all are exasperated by that ratio-even as the Clinton administration urges Congress to establish 50 new capital crimes. The high court is fed up, too, and has moved to cut back on the delays. Yet the McFarland case troubled the justices. A majority of them seemed to react with disbelief when the Texas prosecutor argued that the state could execute a prisoner who was in the process of finding a lawyer. Justice David Souter said that would make a “farce” of Congress’s requirement that condemned inmates be provided with lawyers in federal court.

Don’t blame Texas, with its 375 death-row inmates, for trying. The state has had a remarkable record of capital success at the high court. just last year it persuaded the justices that a condemned prisoner claiming innocence needed to have virtually ironclad evidence say, a videotape of someone else committing the murder before he could get a second appeal in federal court. If Texas prevails and gets to execute McFarland without any federal appeal, it will be a loud message to all other states: set your execution dates so early that inmates will die before they can get a lawyer. Even a Kafka novel couldn’t compete with that.

A Death-Row Census YEAR INMATES ON EXECUTIONS DEATH ROW 1981 794 1 1982 1,009 2 1983 1,147 5 1984 1,351 21 1985 1,479 18 1986 1,684 18 1987 1,874 27 1988 2,021 11 1989 2,186 16 1990 2,347 23 1991 2,412 14 1992 2,616 31 1993 2,676 38 1994* 2,802 4 *LATEST AVAILABLE. SOURCE: NAACP LEGAL DEFENSE FUND