The Death Penalty Revived

After carefully reviewing the haphazard use of capital punishment, Supreme Court Justice Potter Stewart concluded in 1972 that the death penalty was cruel and unusual punishment "in the same way that being struck by lightning is cruel and unusual." A majority of five Justices used words like "arbitrary," "capricious" and "freakish" about the application of the penalty. They joined together to shut down the nation's death rows with a ruling that sounded to many like a constitutional ban on executions. Last week all possibility of such a ban ended when the Justices voted seven to two that capital punishment under certain conditions is still perfectly constitutional. Again, Stewart's was a critical voice as he said for the court: "We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender and regardless of the procedure followed in reaching the decision."

What had changed? In the 1972 decision several Justices indicated that their opposition to capital punishment was based primarily on the unfair way it was imposed, mainly on the black, the poor and the ignorant. They seemed to imply that more specific laws, with mandatory death sentences for certain crimes, might prove acceptable.

Not All Doomed. As a result, no fewer than 35 states, as well as Congress, drafted new death-penalty laws, partly in the hope of stemming the increase in violent crimes. The fact that 70% of the states took such actions was, for Stewart, a "marked indication of society's endorsement of the death penalty for murder." The court was thus finally rejecting the core argument of anti-execution lawyers, who have contended that society actually abhors the punishment and therefore inflicts it mainly on minorities and misfits. The court also held that although there is no proof that capital punishment is effective as a deterrent, it is "an expression of society's moral outrage at particularly offensive conduct," and therefore "an extreme sanction suitable to the most extreme crimes." Only dissenting Justices Thurgood Marshall and William Brennan reaffirmed the traditional liberal view that all executions are, as Marshall put it, a "total denial of human dignity and worth."

The court's judgment--the most important in a long series of decisions handed down throughout last week --did not mean that all the new death-penalty laws are constitutional or that the 588 prisoners now confined on death row are all doomed.* On the contrary, the court specifically dealt with only a handful of murder cases in five states. It approved the death penalty in just three of those states: Florida, Georgia and Texas. In two others, North Carolina and Louisiana, the Justices by a five-to-four vote struck down capital-punishment laws as being too rigid in requiring death for certain crimes--the very thing that the court seemed to be asking for in 1972.

The court now complained that under such narrow laws all those convicted of a given crime became "members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty." The new ruling rejected that approach in favor of leaving leeway for juries and judges to choose within limits when death is or is not a proper punishment. Such laws, said the court, should indicate the sort of aggravating or mitigating circumstances to be taken into account before sentencing--with rigorous appellate review if death is imposed.

How this applies to specific prisoners seemed almost to be a matter of luck. Mandatory death penalties in 20 states, which have 278 death-house prisoners, are now apparently void. On the other hand, 310 prisoners are under death sentence in 14 states with laws much like those that the court approved. Though their lawyers will doubtless make new appeals and seek to gain time, they now face the clear possibility of execution.

No executions are immediately in prospect, but the Governors of Florida, Georgia and Texas are all known to favor capital punishment. Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense Fund, was disconsolate about the court's action and pledged to continue fighting for each condemned convict. But he admitted that "we don't hold out much hope." The death sentence has not been carried out in the U.S. sAice 1967.* That moratorium may not last through its tenth year.

Ungagging the Press

In another major decision, the court confronted the long-standing conflict between the First Amendment's guarantee of a free press and the Sixth Amendment's guarantee of a fair trial.

At issue was the case of Erwin Charles Simants, a mentally disturbed handyman who was charged with murdering six members of a family in the small town of Sutherland, Neb., in 1975.

To protect Simants from prejudicial publicity -- including a report that he had confessed -- the trial judge banned full news coverage until a jury could be impaneled. The state supreme court eventually agreed that reporters could not use Simants' confession or any other fact "strongly implicative" of his guilt before his trial began.

Simants was ultimately sentenced to death, but several news organizations pressed their appeal because gag orders have been proliferating. Last week, in a surprisingly firm 9-0 decision, the Supreme Court nearly outlawed them.

Chief Justice Warren Burger declared that the court was not imposing an "absolute prohibition" on gag rules, but he added that "the barriers to prior restraint remain high." In the Nebraska case, he ruled, "this prohibition regarding 'implicative' information is too vague and too broad." Moreover, some of the banned information had been revealed in a public hearing and "what transpired there could not be subject to prior restraint" under any circumstances.* Where the banned information is not on the public record, however, Burger refused to "rule out the possibility [that an extraordinary] threat to fair trial rights would ... justify restraint."

Though Burger was writing for the court, a majority of the Justices seemed ready to go further than he had. Brennan, joined by Stewart and Marshall, wrote flatly that "there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system." Byron White and John Paul Stevens in separate opinions each indicated that they were also close to that view. All the Justices pointed out that there were other ways of protecting a defendant's Sixth Amendment rights--including moving or delaying the trial, careful questioning of potential jurors, sequestering impaneled jurors and ordering prosecutors, police and court officials not to talk to the press. But for trial judges tempted to gag the press directly, the message seems clear. Nebraska Judge Hugh Stuart still felt that his gag order had been "appropriate," but he also said, "I must have erred since I was reversed."

Other Decisions

PATRONAGE. Over objections from three dissenters that the "timehonored" practice has served to strengthen "robust political discourse," five Justices struck a serious blow at the remnants of the patronage system. The decision came on a case in Chicago where the Daley machine has become one of the nation's foremost practitioners of rewarding political loyalists with public jobs. About 1,000 Republicans working in the Cook County sheriffs office had been routinely turned out after a Democrat was elected in 1970. The court conceded that such firings may be necessary for policymaking officials, but in the words of Justice Stewart the First Amendment right of free speech is violated if "a nonpolicymaking, nonconfidential government employee can be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs."

BUSING. Soon after a federal judge reshuffled students and desegregated public high schools in Pasadena, Calif., population shifts re-created some predominantly black schools. But by a 6-to-2 vote the Supreme Court last week decided that courts cannot alter the new imbalance since "these shifts were not attributed to any segregative actions" by school officials. While not disagreeing with the general principle, Dissenter Marshall did not believe that full desegregation had occurred in Pasadena. He feared, as a result, that judicial supervision of integration will now relax as soon as an initial "school attendance zone scheme [is] successful, even for a very short period."

ABORTION. In 1973 the court ruled that a state cannot stop an abortion when a woman and her doctor decide that she will have one--so long as the fetus is not "potentially able to live outside the mother's womb." But does a woman's husband have any rights in the matter, and if she is an unmarried minor, can her parents forbid the abortion? Last week, by a vote of 6 to 3 on the first question and 5 to 4 on the second, the court ruled that neither husband nor parent may have "an absolute, and possibly arbitrary, veto over the decision of the physician and his patient." The court did indicate, however, that it might take a different view of a state law requiring some form of parental involvement short of a blanket veto.

A Shift to the Right

"This has been the most hectic month in my experience here," said one of the Nixon-appointed Justices last week. "And it has been the most demanding term in memory." Often falling behind in their work, first because of the prolonged illness and retirement of Justice William O. Douglas, then because of the complex controversy over campaign spending, the Justices spent all last week in a confused and unsuccessful attempt to adjourn for the summer. The court's ancient print shop was running overtime to keep up with the last-minute flood of opinions, estimated at 1,000 pages' worth. The pressure may in part explain generally poor reviews of the court's work. "As a whole," said the University of Chicago's Phillip Kurland, "this year's opinions have not been those a law professor would find deserving of a good grade. I'd probably flunk them all."

While the Justices still have eight decisions to announce early this week, observers were already making preliminary assessments of the changing positions of the court. Most of them see a continuing shift toward the right. Criminal defendants particularly have received harsher treatment. In addition, the Justices' concern about the proliferation of litigation has led them to trim markedly the kinds and numbers of those who have standing to bring suits. "This has been a disastrous year for public interest lawyers," says Charles Halpern, director of the Council for Public Interest Law. "Some attorneys are considering withdrawing suits already under way rather than suffer apparent certain defeat."

In a rare public speech this spring before the New Jersey State Bar Association, Justice Brennan, obviously unhappy in his new position in a minority, condemned his colleagues for acting "increasingly to bar the federal courthouse door" to "the litigants most in need of judicial protection of their rights --the poor, the underprivileged, the deprived minorities."

Looking Elsewhere. As Brennan went on to point out, an inevitable and perhaps desirable adjustment has begun. Lawyers are looking away from the Supreme Court as the sole source of legal wisdom and progress; instead, they are pressing novel claims on receptive state supreme courts. The top courts in Alaska, California, Hawaii, Maine, Michigan, New Jersey and South Dakota --among others--have all shown a willingness to go further on certain issues than has the nation's top court. For instance, the New Jersey Supreme Court in 1973 declared the unequal funding of public schools through local property taxes to be in violation of the state constitution, leading to last week's shutdown of the school system (see EDUCATION); the U.S. Supreme Court, by contrast, was unsympathetic to a similar claim under the federal Constitution. With the highest U.S. court now showing reluctance to impose its will on other institutions of government, there is a broadening opportunity for judges --and legislators--who are closer to the people affected by their decisions.

* Following the old tradition, 302 are black. All but ten are men. * Among other major Western democracies only France and Mexico retain broad, though little-used, capital-punishment laws. * Burger, who is sometimes less than happy with press coverage of legal matters, could not resist adding that journalists have a "duty to exercise the protected rights responsibly--a duty widely acknowledged but not always observed by editors and publishers."

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