Clearing A Path to the Chair

By Richard Lacayo

Nearly eleven years ago, the U.S. Supreme Court reinstated the death penalty, provided that it not be applied arbitrarily and capriciously. Today 37 states have death-penalty laws, and since 1976, 69 condemned men and one woman have been electrocuted, gassed, shot or given lethal injections. With almost 1,900 others awaiting execution, prisoners' attorneys have presented one legal objection after another to the high court, most without success. Last week, in what may prove to be their final major challenge, opponents of capital punishment were handed a stunning defeat.

The setback came in the case of Warren McCleskey, a black man convicted of killing a white Atlanta police officer during a 1978 robbery. Lawyers for McCleskey argued that race had played a part in his being sentenced to die in Georgia's electric chair -- the race of his victim as well as his own. The principal supporting evidence was a statistical study of more than 2,000 Georgia murder cases from 1973 to 1979. Conducted by University of Iowa Law Professor David Baldus and two colleagues, the study found that those who killed whites were 4.3 times as likely to receive the death penalty as those who killed blacks. And blacks who killed whites were most likely of all to be condemned to die. In effect, Baldus found, juries put a premium on the lives of whites.

That may be, the court replied, but state death-penalty laws still cannot be held on that basis to violate 14th Amendment guarantees of equal protection under the law. Writing for a 5-to-4 majority, Justice Lewis Powell assumed that the study was valid but said it did not prove discrimination in McCleskey's case or in Georgia's death sentencing generally. "Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused." To raise successful equal-protection objections, a defendant has to prove discrimination "in his case." Nor did the numbers show the sort of arbitrary dispensation of justice prohibited by the Eighth Amendment. They merely indicate, he wrote, a "discrepancy that appears to correlate with race."

Justices William Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens dissented, calling the study proof of impermissible lingering racism in American justice. "Race casts a large shadow on the capital sentencing process," wrote Brennan. The dissenters questioned why statistical evidence, acceptable for attacking discrimination in employment or jury selection, was not acceptable in this case. They also charged that the majority was driven by other than judicial concerns -- a fear of disrupting the implementation of the criminal-justice system in Georgia and elsewhere.

( "This is a clear message that sociologists, statisticians, demographers and pollsters have no place in criminal courtrooms," cheered Daniel Popeo, general counsel of the conservative Washington Legal Foundation. Critics unhappily agreed. "Jurors are going to have to jump up and admit they are racists," complained Joe Ingle, director of the Southern Coalition on Jails and Prisons.

To make matters worse for opponents of the death penalty, just one day before the McCleskey ruling the court significantly restricted an earlier decision that had blocked the execution of certain defendants convicted under "felony murder" laws. Those laws, on the books in most states, allow murder convictions against defendants who took part in a felony in which a killing occurred, even if they did not carry out the killing themselves. The new case involved Ricky Tison and his brother Raymond, who as teenagers in 1977 helped their father and his cell mate to escape from an Arizona prison. Soon after, they commandeered a car, and the two convicts killed all four family members who had been in it, including a two-year-old. After fleeing a shoot-out with police, the father died of exposure in the desert. The sons were eventually convicted of murder and sentenced to die, even though they did not pull the trigger.

Justice Sandra Day O'Connor, writing for the same 5-to-4 majority that lined up in McCleskey, ruled that "major participation" in a felony "combined with reckless indifference to human life" is sufficient to justify a death penalty. For one thing, she noted, the Tison boys knew that their father was serving a life sentence for the murder of a prison guard during an earlier escape attempt. She sent back their case for an Arizona court to consider whether such reckless indifference had been a factor.

After last week's actions, experts from both sides were saying that some individual cases can still be won on appeal, but no other broad-based challenge is likely soon. The court has agreed to decide whether the death penalty can be applied against juveniles, but only about 33 prisoners would be affected. While individual challenges may prevent the death row floodgates from opening all at once this year, the consolidation of capital punishment appears nearly complete. The Justices writing last week seemed to know that. Summoning particular eloquence, Dissenter Brennan said, "It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined." Speaking directly to the apparent ending of the larger court debate, Powell wrote, "It is the legislatures, the elected representatives of the people, that are 'constituted to respond to the will and consequently the moral values of the people.' "

With reporting by Anne Constable/Washington and Daniel S. Levy/New York