Rejected Again

Death and proportionality

"I feel the same way the majority of people in the United States feel about the death penalty," declares Texas Judge Michael McSpadden. "Enough is enough on these appeals. It's time to enforce the laws." Most people in the U.S. (68% according to the Harris Survey) do indeed favor capital punishment; and the U.S. Supreme Court also seems impatient with what it regards as endless legalistic ploys to evade execution. Last week, by a 7-to-2 vote, the court emphatically tore down one more barrier to the execution of many of the 1,289 people currently on death rows in 34 states. The Justices ruled that state appeals courts have no constitutional obligation to review a death sentence to see whether it is "proportionate" to the punishment imposed on others convicted of the same crime.

The appeal was brought by Robert Alton Harris, a Californian sentenced to die in 1979 after kidnaping and killing two teenagers, then using their car for a bank robbery. After eleven hearings, Harris finally persuaded a federal appeals court that he should not be executed until the California Supreme Court compared his sentence with those of others convicted of similar crimes in the state.

In reversing that ruling, the U.S. Supreme Court noted that most states already conduct such "proportionality reviews," but added that they are not "indispensable" to the equitable treatment of defendants in capital cases. Justice Byron White, writing for the majority, pointed out that when the Supreme Court outlined its specifications for new death-penalty laws in 1976, it required only that death sentences be imposed using rational, noncapricious standards.

If a statute had no other safeguards against "arbitrariness," a proportionality review might be necessary, said White, but "the 1977 California statute is not of that sort."

Justice William Brennan, in a vigorous dissent, declared, "The court is simply deluding itself, and also the American public, when it insists that those defendants . . . condemned to death have been selected on a basis that is neither arbitrary nor capricious." The lack of proportionality reviews is only a small problem, Brennan went on, compared with that of racial discrimination.

He cited a dozen studies that demonstrate in new detail the impact of race. One Georgia study shows that blacks who kill whites are especially likely to get a death sentence. That study is now part of the evidence in a Georgia case.

Death-penalty opponents believe the race argument is the strongest one left in their arsenal. But the arsenal is dwindling. Even those who still expect the ultimate defeat of capital punishment are worried. "The Immediate future is grim," says the Rev. Joe Ingle, who leads a Southern prison-reform group. "We've got to brace ourselves for losing some folks. It's like being in a war." One loss came just three days after the court's proportionality decision. In Florida, Anthony Antone, 66, convicted of arranging the contract killing of an organized-crime investigator, was electrocuted, the twelfth man to die since 1976.

More executions are also likely now in Texas, where many residents of death row were counting heavily on the proportionality argument. One of them, James Autry, was saved from the death chamber last October when Justice White issued an eleventh-hour stay pending a decision in the Harris case. Autry, however, may not be the next to be executed in Texas because of his other pending appeals. The angry Judge McSpadden has his own candidate for early punishment: Ronald O'Bryan, known derisively as "the candy man" since he murdered his eight-year-old son by poisoning his Halloween candy. O'Bryan was first sentenced in 1975.

Now McSpadden must set a new date for execution. Vows the judge: "We will do it as soon as possible. I'm not going to give him one day longer."