Bad News for Death Row

By Alain L. Sanders

Few issues touch as deep a nerve in the nation's psyche as questions surrounding capital punishment. Thus reaction across the country last week was swift and in some quarters downright horrified when the U.S. Supreme Court ruled that crimes by some juveniles and mentally retarded people may be punishable by death. By a 5-to-4 vote, the high court ruled in a pair of decisions that the constitutional ban on "cruel and unusual punishments" does not forbid the execution of youths who commit crimes at 16 or 17 years of age, nor does it automatically prohibit death sentences for the retarded. "By executing the retarded and people who aren't old enough to vote or serve in & the Army," said Harvard law professor Alan Dershowitz, "we're doing something barbarous: executing the least culpable people on death row."

The dramatic decisions were written by Justices Antonin Scalia and Sandra Day O'Connor, who were joined by Justices Byron White and Anthony Kennedy and Chief Justice William Rehnquist. The rulings, together with a decision holding that police need not use the "exact form" of the Miranda warnings to inform arrested suspects of their rights, left little doubt that the court's tough law-and-order majority is firmly entrenched. "The days of criminals' getting off on technicalities are over," declared Daniel Popeo, head of the conservative Washington Legal Foundation, surveying the overall rightward drift of the Rehnquist Court's criminal jurisprudence this year.

The capital-punishment cases focused new attention on some of the 2,200 convicts on death row, 31 of whom committed their crimes as juveniles and as many as 30% of whom may be retarded or mentally impaired. While liberal activists fumed at the rulings, conservative legal experts and law-enforcement officials gave strong approval. Commented Phil Caruso, president of New York City's Patrolmen's Benevolent Association: "These are sound decisions, in keeping with what's happening on our streets today. We're talking about teenagers who have reached the age of intellectual maturity, who can distinguish right from wrong and who have committed heinous acts of premeditated, deliberate murder. They should suffer the full consequences." In a nationwide poll conducted for TIME and CNN last week, those responding expressed strong disapproval of the death penalty for the retarded, although a majority supported executing teenagers.

The ruling on 16- and 17-year-olds grew out of murder cases against Kevin Stanford of Kentucky and Heath Wilkins of Missouri. Stanford was 17 in 1981 when he held up a gas station, then sodomized a female attendant and shot her in the head at point-blank range. At 16 Wilkins repeatedly stabbed a woman owner of a convenience store in the neck and chest during a 1985 robbery. Justice Scalia emphasized that the constitutionality of sentencing 16- and 17- year-olds to death depends on the "evolving standards of decency that mark the progress of a maturing society." Applying that standard with chilly mathematical precision, Scalia calculated that of the 37 states now permitting capital punishment, only twelve prohibit a death sentence for offenders under 18, and three others forbid it for those under 17. "This does not establish the degree of national consensus this Court has previously thought sufficient to label a particular punishment cruel and unusual," he concluded.

In sharp dissent, Justice William Brennan wrote, "We have never insisted that a punishment ((be)) rejected unanimously by the States before we may judge it cruel and unusual." He added, "This Court abandons its proven and proper role in our constitutional system when it hands back, to the very majorities the Framers distrusted, the power to define the precise scope of protection afforded by the Bill of Rights, rather than bringing its own judgment to bear."

The court's appearance of detachment drew fire from civil libertarians. Said Henry Schwarzschild, director of the American Civil Liberties Union's Capital Punishment Project: "For the court to act as though it were a political instrumentality, which merely reacts to the wishes of the general society, is an abdication of its responsibility to make constitutional judgments."

Although the ruling on the mentally retarded was less sweeping, it evoked equally intense feelings. The decision at hand involved the 1979 case of Johnny Paul Penry, then a 22-year-old with a mental age of seven, who raped a woman in her Texas home and stabbed her to death. Writing for the court, Justice O'Connor asserted that there is no bar to the execution of retarded criminals so long as juries are "allowed to consider mental retardation as a mitigating circumstance" in deciding on a death sentence. "While a national consensus against execution of the mentally retarded may someday emerge," she said, "there is insufficient evidence of such a consensus today."

Some criminal-law experts worried about the message sent out by last week's death-penalty rulings. "We're teaching young people that the solution to crime is to kill," said Cleveland State University law professor Victor Streib. But conservatives like former Reagan Assistant Attorney General William Bradford Reynolds insist that the rulings are no more than demonstrations of proper judicial restraint. Courts, such observers maintain, should limit their review to what is constitutionally mandated and not decide what is wise or unwise as a matter of policy.

That explanation satisfied few of the Supreme Court's liberal critics. Complained Richard Burr of the N.A.A.C.P. Legal Defense and Educational Fund: "If all the Justices can do is survey the legislative scene and declare a winner, you don't need a court. All you need is someone who can count."

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With reporting by Steven Holmes/Washington and Andrea Sachs/New York