TIME: Almanac 1993/TIME Almanac 1993.iso/time/071089/07108900.004

Text File | 1992-09-23 | 6.0 KB | 112 lines

                _                                                              LAW, Page 48

Bad News for Death Row


The court okays the execution of teenage and retarded criminals


    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."