TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/071089/07108900.004

Text File | 1990-09-17 | 6KB | 104 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."