Waiting for Death

During the summer, Texas prison officials decided that the time had come. They installed a new wiring system in "Old Sparkey," the state's natural-oak electric chair. The electric chairs in Georgia and Florida were also rewired and got other minor repairs. Last week the U.S. Supreme Court cleared the way for their return to use. On the first day after the summer recess, the nine Justices announced that they would not reconsider their ruling of last July upholding the constitutionality of capital-punishment murder statutes in the three states.* The Justices forthwith lifted a stay that had been in effect since July, and put 183 convicted killers in immediate peril of their lives.

No executions are probable, however, for at least four months and perhaps much longer. Texas Attorney General John Hill predicted that it would be at least two years before all the appeals are completed and the first execution could happen in his state. Like many in the U.S., Texas death row prisoners had seemed almost not to believe that cap ital punishment would really return. With last week's final Supreme Court decision, reality has begun to sink in. The long-expected individual appeals will now start inundating Hill's office.

In Florida and Georgia, officials are not sure how soon executions might start. Both states have clemency-hear ing provisions that could keep the condemned alive at least until early next year. Georgia Governor George Busbee pledged last week to automatically grant a stay of execution to any clemency applicant until he can have his hearing. Moreover, Savannah Lawyer Bobby Hill, who has successfully fought the death penalty many times, announced that he would represent any condemned prisoner in Georgia who asks for help. Hill vowed to take each case back to the original convicting court and crank out every appeal imaginable.

The N.A.A.C.P. Legal Defense Fund, which led the nationwide legal attack on the death penalty, also plans to help anyone on death row who turns to it. The organization has already prepared a new version of the "last aid" kit that it once sent to lawyers whose clients faced death in a matter of hours or days. The kit includes motions for a stay, habeas corpus forms and the like. The L.D.F. has now been forced back to the vast task of a case by case attack on individual death sentences. One tactic will be to claim that a particular sentence was the consequence of racial or economic discrimination; another will be to argue that it was arbitrarily imposed.

Fail to Save. Since the Supreme Court has specifically endorsed the death penalty in only these three states, the capital punishment laws of 31 others are still in dispute. The court has struck down laws that rigidly apply the death sentence for specific offenses. Instead, it has approved only those statutes under which judges or juries get adequate information about each individual and his offense to use in making the life-or-death sentence decision. "The mood around here is pessimistic determination," says David Ken dall, who supervises the L.D.F. battle, "but we'll go on defending our indi gent clients as long as we can." The anti-death lawyers are already living with the fear and certainty that sooner or later they will fail to save someone.

When that happens, the moratorium on executions in the U.S., which be gan in 1967, will end. States that do not pass the constitutional test will likely make changes to meet the court's new requirements. So far two states have already enacted such statutes. But the challenges they almost surely face mean that Florida, Georgia and Texas are likely to execute first.

* It will decide this term whether death can be a constitutional punishment for rape

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