Uncertain Status of Capital Punishment
Attempts to Overcome Court's Death Penalty Ban
The death penalty seemed dead on June 29, 1972, when the Supreme Court ruled 5 to 4 that capital punishment as it was imposed in this country violated the constitutional prohibition against cruel and unusual punishment. But now, months later, the death penalty has begun to stage a comeback. The Florida legislature met late in the year and rewrote the state's capital punishment law in an attempt to make the death penalty withstand court challenges. Lawmakers in several other states are expected to follow the Florida example; legislatures in 49 of the 50 states, all except Kentucky, have regularly scheduled sessions in 1973. And at the national level, Attorney General Richard G. Kleindienst said on Jan. 4, 1973, that the Nixon administration would probably ask Congress to reinstate the death penalty for certain “specific” crimes like kidnapping, assassination, bombing a public building, hijacking and killing a prison guard.
Advocates of capital punishment believe that if new laws meet objections stated by the Court's majority last June, then the death penalty will become legally permissible again. This belief can be proved or disproved only when newly enacted death penalties are tested before the Court. There has been great uncertainty because the ruling was not only close but was rendered along narrow lines. Each justice wrote a separate opinion and only two, William J. Brennan Jr. and Thur-good Marshall, appeared to take the absolute position that the death penalty was “cruel and unusual punishment” per se. William O. Douglas found capital punishment to be unconstitutional because it was inflicted arbitrarily on the “poor and despised.” Potter Stewart concluded that the “Eighth and Fourteenth Amendments cannot tolerate a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Byron T. White wrote that “where the penalty is so seldom invoked, it ceases to be a credible threat essential to influence the conduct of others.”
The four members of the Court appointed by President Nixon—Warren E. Burger, Harry A. Blackmun, Lewis F. Powell and William H. Rehnquist—based their dissent on the proposition that a decision to retain or abolish capital punishment properly belonged to the states or to another branch of the federal government. Chief Justice Burger pointed out that the opinions of White and Stewart and perhaps Douglas implied that the states might reinstate capital punishment under prescribed conditions. “Since the two pivotal concurring opinions [White's and Stewart's] turn on the assumption that the punishment of death is now meted out in a random and unpredictable manner, legislative bodies may seek to bring their laws into compliance with the Court's ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by narrowly defining the crimes for which the penalty is to be imposed.”