No Death for Kidnapers

Congress' reaction to the 1932 kidnap-murder of Charles Lindbergh's baby son was shock, rage and a stiff law: "Whoever knowingly transports in interstate commerce any person who has been unlawfully kidnaped and held for ransom or otherwise, shall be punished by death if the kidnaped person has not been liberated unharmed and if the verdict of the jury shall so recommend." Last week, on the basis of the jury verdict last clause, the Supreme Court struck down the Lindbergh law's death-penalty provision.*

Objections to the law had been raised by attorneys for Charles ("Batman") Jackson and two henchmen who were accused of a 1966 kidnap during which their victim, a young truck driver, was taken from Connecticut to New Jersey and tied to a tree (he suffered rope burns). The lawyers argued that since the death penalty could only be imposed by a jury, the defendants were being made to risk a harsher punishment if they chose jury trial; by pleading guilty or by asking to be tried by a judge alone, they would not face death. Speaking for a 6-2 majority, Justice Potter Stewart found the argument persuasive. "The inevitable effect," he wrote, "is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial."

The court's reasoning was broad enough to strike down similar jury death-penalty provisions in federal bank-robbery laws and the Atomic Energy Act's national-security section. But it did not affect the constitutionality of capital punishment, currently under broad legal attack. In fact, the court implied that should Congress wish to maintain a death penalty provision in the Lindbergh law, nothing in last week's decision would prevent it from approving legislation enabling judge as well as jury to pass such a sentence. Any such provision would not affect Jackson and his pals, but they do not go free. The court declined to throw the whole law out with the death penalty. So Jackson, et al, still face life imprisonment if convicted.

*Ironists were quick to point out that the court's decision came only a few days after the 32nd anniversary of the execution of Lindbergh Kidnaper Bruno Richard Hauptmann. Hauptmann, however, was not executed under federal law but under the New Jersey State murder law. In fact, only six kidnapers have been put to death under the U.S.'s so-called Lindbergh law.

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