CAPITAL PUNISHMENT
By inches, the death penalty is dying in the U.S. It has been abolished or drastically restricted in 13 states. U.S. Attorney General Ramsey Clark has publicly stated his opposition. Executions have declined from an alltime recorded high of 199 in 1935 to seven in 1965 and one last year. There has been only one so far this year (TIME, April 21), and now a major legal assault has been mounted in an attempt to make that execution the last.
"Cruel & Unusual." Leading the attack are the American Civil Liberties Union and the N.A.A.C.P. Legal Defense Fund. "We have embarked on a major drive to have the death penalty abolished in all 50 states," says Melvin Wulf, the A.C.L.U.'s legal director. Although the Legal Defense Fund first started fighting capital punishment because of the high number of Negroes being sentenced to death, it has, as a matter of policy, broadened its horizons to consider the plight of poor whites as well. Between them, the two organizations have put together an unusuL battery of legal weapons in three current cases.
All the cases—one in Florida, two in California—depend at least partly on the contention that the death penalty is "cruel and unusual" punishment, which is explicitly barred by the Eighth Amendment. "And the less frequently it occurs," says Wulf, "the more cruel and unusual it becomes." Another argument claims that the death penalty serves no interest of society and is therefore unnecessary punishment in violation of due process of law. In the Florida suit, which seeks to do away with capital punishment on behalf of all 51 men on the state's death row, it is additionally contended that juries, which have no say over sentencing in noncapital cases, decide for or against the death penalty with "unlimited, undirected, unreviewable discretion."
Years Away. Like the Florida petition, one of the California suits, filed last week, also argues that by excluding jurors who oppose capital punishment, the state makes both conviction and imposition of the death sentence more likely, by violating the defendant's right to a jury picked from a full cross section of the community. The second California case differs markedly. In that one, Robert Emmett Thornton, 23, has already been convicted of two kidnap-rapes. While he was awaiting formal sentencing, the A.C.L.U. asked to be allowed to challenge the constitutionality of capital punishment. In a rare move, the judge agreed to take evidence on the point: in September, such anti-death-penalty experts as former San Quentin Warden Clinton Duffy will testify against capital punishment, and state witnesses will defend it.