Fatal Decision

On June 2, 1967, Luis Jose Monge, 48, convicted of murdering his pregnant wife and three of their seven children, was executed in Colorado State Prison. He was the last man to suffer that fate in the U.S. Since Monge died, 650 other condemned prisoners have accumulated on the nation's death rows, awaiting word from the Supreme Court on the constitutionality of the death penalty. Last week the court wiped away two questions that had been key elements in sustaining the moratorium.

At issue were the cases of Dennis McGautha of Los Angeles, condemned for killing a grocer during an armed robbery, and James Crampton of Toledo. Ohio, convicted of murdering his second wife. Both men argued that their death sentences should be overturned because their juries had no guiding standards, such as the defendant's potential for rehabilitation, to help them choose a verdict of life or death.

Naked Power. Crampton's case involved the most prevalent U.S. jury procedure. He challenged the constitutionality of Ohio's system, under which a single jury proceeding both convicted and sentenced him to die. Because of that system, his lawyer argued. Crampton had to give up one right in order to exercise another. He could not take the stand and seek mercy in sentencing without risking self-incrimination on the issue of guilt. In short, his forced silence may have helped condemn him.

In a 6-to-3 decision, the court held that neither Ohio's single-jury system nor the "untrammeled discretion" of juries violates the due process clause of the Constitution. In his 38-page majority opinion, Justice John M. Harlan refused to be drawn into a debate on capital punishment. Said Harlan: "The Federal Constitution does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court." All the Constitution requires, Harlan held, is a fairly conducted trial in which the defendant's guaranteed rights are respected.

In a vigorous 64-page dissent, Justice William Brennan argued that Harlan's view begged the crucial question: If the juries had no explicit standards on which to base their decisions, were the defendants given their guaranteed constitutional rights? Absolutely not, said Brennan. "Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power."

Penultimate Question. The Supreme Court's decision will not start a rash of executions--at least, not immediately. Mindful of the many appeals pending in other capital cases, Governors in the 38 states that still retain the death penalty took cautious positions. California's Governor Ronald Reagan went on record again favoring the death penalty, but none of his state's 99 condemned men and women are expected to go to the gas chamber before late summer at the earliest. Ohio's Governor John Gilligan refused to be prodded at all by the court's decision. He flatly barred executions in his state, where 52 persons wait on death row, until the Supreme Court rules on the constitutionality of the death penalty itself.

That day may not be far away. The court now has 120 death cases pending for review. Among the issues is the penultimate question: Do death penalties constitute "cruel and unusual punishments," which are barred by the Eighth Amendment? Given the court's ruling last week, civil libertarians like Stanford Law Professor Anthony Amsterdam are not optimistic. Still, says Amsterdam, "the court knows that we will stop some time; we just don't have the guts to stop quickly."

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