Doomed Penalty

There has not been an execution in the U.S. in more than a year; last week the Supreme Court made it more likely that there will never be another.

In Illinois, as in many states, the jury in capital cases is given the responsibility of deciding the sentence, as well as guilt. Convicted of killing a Chicago policeman in 1959, William Witherspoon was sentenced to death by a jury that had been purged of anyone with "general objections" to capital punishment. By a 6-to-3 vote, the court ruled such a practice unconstitutional; Witherspoon had not been tried by a true cross section of the community, since only 42% of the nation favors the death penalty according to a 1966 Gallup poll, said the court. His conviction stands, but his sentence does not. "Whatever else might be said of capital punishment," said Justice Potter Stewart in the emotional climax of his opinion, "it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution."

Justice Stewart did say that it is still proper to exclude a person who could not vote for the death penalty under any circumstances. But a man can no longer be eliminated merely because he disapproves of capital punishment. A jury that does not have such members is unfairly weighted toward imposing death, said the court. Therefore, every man who has been condemned by such a jury must now be resentenced--although the court made it clear that it was not reversing convictions.

To Justice Hugo Black, such reasoning was slipshod and full of "semantic camouflage." Many of the 470 men now waiting on the death rows of the 41 states that still inflict capital punishment will be affected by the ruling, and Black thought it unlikely that they, or any future defendants, would ever be condemned by a jury with members who had any scruples at all against capital punishment. Such men, said Black, "will seldom if ever vote to impose the death penalty. This is just human nature. If this court is to hold capital punishment unconstitutional, it should do so forthrightly, not by making it impossible for the states to get juries that will enforce the death penalty."

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