| Delay on the Death Penalty

Although 14 American states--and most Western nations--have substantially abolished the death penalty, the Supreme Court has thus far declined to rule on its constitutionality. Last fall the court agreed to review the conviction of William Maxwell, 30, an Arkansas Negro sentenced to death in 1962 for the rape of a white woman. But the case covered only the procedures by which capital punishment is imposed; it excluded the key puzzle of whether capital punishment violates the Eighth Amendment guarantee against "cruel and unusual punishment." Last week the court avoided even the questions it had earlier agreed to answer.

Those questions challenged jury practices in capital cases all over the country. The jury found Maxwell guilty, and sentenced him to death in a single proceeding. This gave Maxwell no chance to take the stand and plead for mercy. Had he done so during the trial, he would have been cross-examined and risked self-incrimination on the issue of his guilt or innocence. The jury also fixed the penalty without any guidance from the judge as to the circumstances under which a man should be sentenced to death.

Easy Out. An odd snarl forced the court to ignore those issues. The decision had been postponed for more than a year because there were only eight Justices sitting, and their opinions were split. Ironically, Justice-designate Harry Blackmun, who will be sworn in this week, would have disqualified himself because he had ruled against Maxwell while serving on the U.S. Court of Appeals for the Eighth Circuit.

As a result, the court took an easy out and invoked a two-year-old precedent. Finding that Maxwell's jurors had apparently been screened in a way that barred veniremen even vaguely opposed to the death penalty, the Justices reversed his conviction and remanded his case to the lower federal court.

Even so, the high court simultaneously agreed to review two more capital cases next fall, when Blackmun can participate. Both cases raise the same issues as Maxwell. Pending those decisions, the nation's 510 condemned prisoners are likely to be kept alive. Because of state abolition, appeals, pardons and commutations, the U.S. has not staged a single execution in three years.

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