Death and Confusion at the Court

When Gary Mark Gilmore's mother appealed to the U.S. Supreme Court last week to stay his imminent execution, she raised anew the fundamental question: Is the death penalty constitutional?

Fittingly enough, Bessie Gilmore's attorney was Professor Anthony G. Amsterdam of Stanford, the man who had helped persuade the Supreme Court to answer that question in the negative. Or so the answer seemed to be in 1972. when the Justices ruled that the "arbitrary" and "freakish" way death sentences were imposed made them unacceptable. But when several states began writing more limited and more specific new death-penalty statutes (35 have now done so), the court started refining the rules. Having rejected capricious death sentences on the one hand, it also rejected mandatory ones, like an automatic death penalty for anyone convicted of first-degree murder. As a middle course, it said last July that states must specify standards to guide judges and juries in deciding which convicted murderers should be sentenced to death. Last week, however, when the court stayed the executions of Gilmore and others in order to hear new appeals, even some experienced lawyers were confessing complete bewilderment. No less bewildered were the more than 400 prisoners in the nation's death houses.

The key cases involved states whose laws had just been reviewed:

LOUISIANA: In July a 5-to-4 vote had struck down part of Louisiana's new capital-punishment statute because it mandated death for all those convicted of first-degree murder. It did not deal specifically, however, with a section of the law mandating execution for cop killers. When a man who had killed a policeman appealed his conviction to the Supreme Court, State Attorney General William J. Guste Jr. conceded that he could not be executed. Guste was therefore no little surprised when the Justices announced that they would hear arguments on why a mandatory death penalty for the killing of a policeman might be constitutional after all.

FLORIDA: In July the Justices had voted 7 to 2 that the state's new law was constitutional because it provided clear guidelines for deciding whether a particular murderer deserved death. But last week, while listening to oral arguments in a new Florida case. Justice Potter Stewart suddenly took off his glasses and angrily leaned back in his chair. "This court," he told stale lawyers, "upheld that statute on the representation of the state of Florida that this was an open and aboveboard proceeding. This case gets here, and it's apparent that it isn't." What had piqued Stewart was the disclosure that a damaging presentencing report to the judge had been kept secret from the defense after the original trial and the state supreme court had had no chance to review it. "Perhaps as many as three members of the court," warned Stewart, might now "change their minds" on that original case.

Those three Justices were presumably Lewis Powell, John Paul Stevens and Stewart, who had tipped the balance in July, voting to bar mandatory death-penalty statutes and to permit the so-called guided discretion laws that many states are now enacting. Despite the signs of confusion, some experts thought the justices were simply trying to clarify their original decision. Said Stanford's constitutional-law expert Gerald Gunther: "It's hard to believe they're going to change their minds so soon. But it does look as if they're uneasy with the bizarre compromise they came up with last time."

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