Reconsidering the Death Penalty

At lunch in the U.S. Supreme Court dining room recently, two of the Justices were chatting about the court's reconsideration of the death penalty, the third time in the past four years that the subject has been before the high bench for full review. "I don't see why the rest of us have to sit through this again," joked one Justice. "Potter, Byron and John Stevens could decide this one by themselves."

The arithmetic underlying that gallows humor, reports TIME Supreme Court Correspondent David Beckwith, should be chilling to those who last week presented oral arguments asking the court to eliminate capital punishment finally and completely. For the remark assumed that Chief Justice Warren Burger and Justices Harry Blackmun, William Rehnquist and Lewis Powell, who voted against finding the death penalty cruel and unusual punishment in 1972, will continue to hold to that position. If new Justice John Paul Stevens joins them or if either Potter Stewart or Byron White switches sides, then the nine-year nationwide executions hiatus will be near an end.

Mandatory Play. That moratorium was reinforced in 1972 when five Justices, including the now-retired William O. Douglas, filed separate opinions that appeared to add up to a holding that the death penalty violated the Eighth Amendment because it was then being imposed in a "freakish," "arbitrary" and "capricious" manner. Seizing on the Justices' own dicta, a committee of the National Association of Attorneys General within six months recommended what it considered the best way around the ruling: "a mandatory death penalty for specified offenses." With unaccustomed speed, 35 states and the Federal Government have since passed versions of just such a law.

Defense attorneys for three white and three black condemned murderers in five of those states were arguing last week that the new "mandatory" laws operated in the same unconstitutionally "capricious" way that earlier laws had. Stanford Law Professor Anthony Amsterdam, who has led the N.A.A.C.P. Legal Defense Fund's long war against executions, contended that even if the new laws require neutral enforcement of the death penalty there is inevitably "play" in the system. Prosecutors, for example, can always decide against bringing a capital charge and juries can convict for a lesser offense. This "elaborate winnowing process," said Amsterdam, means that only an arbitrarily selected few are sentenced to death.

There is support for Amsterdam's view in the working experience of other mandatory sentencing laws. In 1970, first-degree murder in Pennsylvania carried a mandatory punishment of life imprisonment, but a team of researchers, led by University of Chicago Law Professor Franklin Zimring, reports in a forthcoming study that plea bargaining and lesser charges were regularly used to evade the law's intent, suggesting to the authors "that legislation prescribing mandatory capital punishment for premeditated or felony-murder would not be mandatory in effect." Supporters of mandatory executions answer that the new capital punishment laws do as well as is humanly and systemically possible and that the death penalty is necessary to deter violent crime.

Solicitor General Robert Bork, speaking for the Ford Administration, told the Justices that "it cannot rationally be questioned that capital punishment has a deterrent value." For support, he cited a complex analysis of murder-related data by University of Chicago Economist Isaac Ehrlich that indicated that from 1935 to 1969, each additional execution per year "may have resulted in seven or eight fewer murders." That startlingly precise conclusion and Ehrlich's technique have been widely criticized for, among many things, failing to consider such influences on the rising murder rate as the increasing number of guns in the U.S. But the fact remains: Ehrlich has offered the first serious statistical support for a proposition that is instinctively shared by many.

Needed Revenge. Support for capital punishment, according to the Gallup poll, has increased from 50% in 1972 to 64% in 1974. Almost certainly that shift reflects public fear and desire for retribution, which have accompanied the nation's still-rising crime rate. "I believe the death penalty is a needed revenge for society," says Iowa Attorney General Richard Turner. "It has a cleansing effect." Tufts Philosopher Hugo Bedau, a longtime foe of capital punishment, believes that while more people want the legal possibility of capital punishment, "it is unclear that the public wants executions. What they want seems to be an occasional execution."

If a condemned man is actually put to death in the U.S., predicts Bedau, "it will be a traumatic moment. There are 529 people under death sentences right now. And I don't think any Governor or judge is anxious to be the guy to let the bloodbath begin." The nine judges of the Supreme Court may not be anxious either, but by the end of June they will announce what they believe the Constitution requires them to do.

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