The Law: After Gilmore, Who's Next to Die?

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For 358 other inmates on death rows in 20 states, the big question now is: Who will be next? Jerry Lane Jurek, 22, convicted of the murder of a ten-year-old girl, was scheduled to die in the Texas electric chair last Wednesday. But hours after Gilmore's execution, the Supreme Court delayed Jurek's death until it could consider his appeal. Next up could be Calvin Woodkins, another Texas murderer, scheduled to die on Feb. 10. But that date too is likely to be postponed. The Supreme Court, however, has upheld the death-penalty laws in Texas, Georgia and Florida, and it is in one of those states that condemned man No. 2 is likely to die. Opponents of capital punishment have argued that the death of Gilmore would break a psychological barrier created by the years of moratorium. Most experts, however, believe Gilmore's fate is not likely to set off a large number of executions. The main reason: most of those now confined to death row are not so eager to die. Says Yale Law Professor Charles L. Black Jr.: "Gilmore would not allow the legal points to be made. Gilmore cannot give away other people's rights." The end of the moratorium places a new burden on the trial courts. "Now they know for the first tune in ten years that to condemn someone to death may very well mean that the person will be put to death," says Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense and Educational Fund. "The sense of responsibility will be greater." And although the American Civil Liberties Union lost its battle to keep Gilmore from the firing squad, Executive Director Aryeh Neier says he is "determined to make it as difficult as possible to execute anyone else."

One thing, however, is certain: public opinion strongly favors the death penalty. For the moment, anyway. But, according to Columbia Law Professor Michael Meltsner, the history of capital punishment demonstrates that "when the death penalty is used frequently, it provokes resistance."

Finally, the validity of capital punishment is still up to the Supreme Court, which will probably be forced to review the statutes in the 35 states that have rewritten their death-penalty laws since 1972. In a decision last July, the court ruled that there must be specific guidelines governing death sentences and that state appellate courts must review the application of these guidelines. Whether that system will really work remains to be tested.

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