Most people assumed that the death penalty died last June when the U.S. Supreme Court, by a 5-4 vote in Furman v. Georgia, declared capital punishment unconstitutional. So why, in this week's election, did California ask its voters for their opinion on capital punishment? In fact, the U.S. Supreme Court decision was not all that clear. Each of the nine Justices was moved to write his own opinion, and at least two Justices based their anti-death decision on the "arbitrary" and "freakish" choice of those on whom the penalty has been imposed. For those who still support capital punishment, that observation suggested that it might yet be revived. The problem, explains Oklahoma Attorney General Larry Derryberry, is "how to write a law the U.S. Supreme Court will approve."
So far, most of the effort to reinstate the death penalty has concentrated on eliminating "arbitrariness" by making death mandatory for certain crimes. A Florida commission named by Governor Reubin Askew recently recommended that the death penalty be required for anyone convicted of a premeditated murder or a murder in connection with rape, kidnaping, hijacking, bombing or arson. A group of 19 state attorneys general is now busy drafting proposals ranging from a U.S. constitutional amendment to a model law with a mandatory death sentence for such crimes as murder by contract or the killing of a policeman. At least ten state legislatures will consider capital-punishment bills at their next sessions.
In the courts, Delaware's attorney general has a case before the state's highest bench in which he contends that the U.S. Supreme Court decision really meant not the end of capital punishment but (in Delaware anyway) that it must now be imposed invariably for designated capital crimes. Last month, the Pennsylvania Supreme Court rejected an effort by Philadelphia Prosecutor Arlen Specter and his assistant Richard Sprague to show that the state's death penalty has not in fact been imposed arbitrarily. Sprague, who is one of the nation's most fervent supporters of capital punishment and is prosecuting the Yablonski mine union murder cases (TIME, July 17), based his argument on a study he has made of Pennsylvania's condemned men. Poor, black or uneducated defendants, he said, are actually slightly less likely than others to receive death sentences. The court refused to admit the study as evidence. Undaunted, Sprague is trying to find another way to introduce it in support of the two death penalties returned so far against the Yablonski killers.
The N.A.A.C.P. Legal Defense Fund, which masterminded the attack on capital punishment, is confident that its victory will stand despite the new efforts. L.D.F. Attorney Jack Himmelstein insists that Sprague's study still does not show any rational distinction between those who do and do not get death. As for turning to mandatory execution, Himmelstein contends that it "would be administered just as arbitrarily." Prosecutors, he points out, could still bring lesser charges, juries could return lesser convictions and Governors would choose which sentences to commute. "We used to have mandatory capital punishment," Himmelstein notes. "The reason we turned to discretionary is that discretionary was in fact what was happening anyhow."