Death Dealing

In the 1972 case of Furman v. Georgia, the Supreme Court dealt a staggering but not quite final blow to the death penalty in the U.S. Though all nine Justices wrote separate opinions, the sum controlling view appeared to be that most capital-punishment sentences were cruel and unusual because those few who faced the penalty were singled out in a "freakish," "arbitrary" and "capricious" manner. Supporters of capital punishment concluded that one way around the court's ruling would be to make death the mandated penalty for such crimes as first-degree murder and first-degree rape. Next Monday the Justices will hear oral arguments on that contention. The lives of 217 convicts on death row are in the balance.

Justice William Douglas' stroke last New Year's Eve ought to have sent shivers through those death-row residents. In the 1972 case the vote against the death penalty was 5-4, with Douglas part of the tenuous majority. The court delayed oral arguments in the current case while Douglas recuperated, presumably because the other eight Justices believed there was a strong chance that they might split 4-4 without him. Last week Douglas reentered the hospital for "a few days" of rest and tests. The case will now apparently be heard whether he returns or not, and a tie vote would leave standing a North Carolina decision upholding the death penalty because it had become mandatory in the state.

The N.A.A.C.P. Legal Defense Fund, which has led the attack on capital punishment, will argue that any scheme for sentencing offenders to death is never truly mandatory; discretion, and therefore arbitrary uncertainty, always remains. North Carolina concedes as much, but claims that discretion has always been common to the whole structure of punishment and is both reasonable and constitutional.

The two sides will also debate whether death itself is now a constitutional form of punishment. Citing evolving standards of decency, the large number of "civilized" nations that have abandoned executions and the fact that the penalty in the U.S. falls disproportionately on blacks and other socially rejected groups, Legal Defense Fund lawyers contend that the death penalty has become barbarous. North Carolina replies that since 31 states have moved to retain the capital sanction since the 1972 decision, the court cannot substitute its judgment of what is barbaric.

Special Facts. Underlying much of the argument is the question of whether the death penalty has a deterrent effect. Most experts feel there are no reliable studies on which to base an answer. Now criminal-justice circles are abuzz with word that in a soon to be published study, Economist Isaac Ehrlich of the University of Chicago claims to have proved the existence of a deterrent effect by a statistical analysis of figures from 1933 to 1969. (The last execution in the U.S. was in 1967.)

The court may not provide a final answer. The special facts of the case, which involve the barroom-brawl murder conviction of Jesse Fowler, may prompt one or more Justices to shift their position. More important, Fowler's death sentence grew out of a North Carolina Supreme Court ruling that reinterpreted existing legislation and read into it mandatory death penalties. The Justices may choose to rule only that such judicial construction was improper and thus leave to another day the broader question. If that happens, death-row inmates would once again have to hope that the redoubtable Justice Douglas, now 76, will be back on hand to cast his still critical vote in the next case involving a mandatory penalty of death.

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