Death Penalty: The Country Hasn't Made Up Its Mind Many Questions Still Unresolved, but Abolition Efforts Falter

October 31, 1993|By LYLE DENNISTON

Washington -- With a grim passion, America holds on to its fascination with the death penalty -- devoted to it as an idea, determined to have it carried out sometimes, but troubled that it might become merely a routine. Those contradictions complicate the law, bedevil the politicians and leave much unsettled about death sentencing.

The reality is that, 17 years after the Supreme Court allowed America to experiment again with capital punishment, the country has not made up its mind fully about the political, moral, constitutional and emotional dilemmas that arise each time another murderer heads for an execution chamber. That is happening almost weekly now, and the rate may go up.

With Maryland about to join the 21 other states that have had executions since 1976, if it sends murderer John Frederick Thanos to the gas chamber, it has become Marylanders' turn to raise those same questions in the streets, in the political precincts, in the courts.

One of those questions, one of the most basic, is this: Will the states, frustrated by the way the death penalty works (or fails to work), abolish it altogether? If experience over the past 17 years means anything, a tentative answer already may be in: No.

There is still an abolition movement, fervent as ever in its opposition. But key figures among the abolitionists concede that they can no longer look to the Supreme Court to decree an end to executions, as movement lawyers once hoped so confidently they could.

"I can't imagine it any time soon," frankly concedes Vivian Berger, law professor and vice-dean at Columbia University Law School and a longtime leader in the American Civil Liberties Union's campaign to use the law to stop executions. An ACLU aide who now runs the organization's project against the death penalty, Diann Rust-Tierney, agrees: "I don't see abolition coming from this court."

No longer does the court have a justice calling for an end to death sentences, like retired Justice William J. Brennan Jr., and the late Justice Thurgood Marshall. While on the court, they voted against all executions and unsuccessfully sought to have the death penalty struck down as "cruel and unusual punishment."

Only two justices can now be expected, though not routinely, to oppose some executions: Justices Harry A. Blackmun and John Paul Stevens. Infrequently, Justices Sandra Day O'Connor and David H. Souter do, too. The most significant vote new Justice Ruth Bader Ginsburg has cast so far on any issue was a vote to delay a Texas execution last month, but it is too early to know whether that was the start of a pattern.

A clear majority of the court for years has voted to uphold death sentences and has gone far toward closing the federal courthouse door to appeals by state Death Row inmates looking for legal relief after using up their appeal rights in state courts.

Ernest van den Haag, for many years one of the nation's best-known academic supporters of capital punishment, now retired from Fordham Law School's faculty, says of the abolition movement: "I think it has been sort of marginalized. Its major attention was through the courts. They have been pretty much stymied; the issue has been pretty much laid to rest by the Supreme Court."

The movement, therefore, must now fight its battle in politics -- and that is an arena where there is little doubt that the dominant power is held by death penalty supporters. Regularly, seven out of ten Americans tell pollsters they favor the death penalty for murder.

In politics, the death penalty issue resonates like no other life-and-death question; not even abortion seems to have the same power over voters and politicians. It does so, Mr. van den Haag suggests, because vocal support for the death penalty is an easy proxy for a willingness to do something about crime. "For your constituents," he says, "you are seen as a fighter against crime" merely by speaking out in favor of death sentencing.

There is perhaps no better illustration of that, in any era, than the vivid one now being displayed here, in Congress. The Senate is pondering a broad new anti-crime bill, and a central feature of it would make the death penalty available for 47 federal crimes, including train wrecking. In the House, the leading Democratic bill would allow death penalties for 64 crimes -- the greatest expansion ever proposed at the federal level.

Among some advocates of the death penalty, that kind of effort is seen as grandstanding, not likely to result in significant increases of actual executions. Mr. van den Haag, for example, dismisses most political calls for capital punishment as having "no practical value whatsoever; it costs them [politicians] nothing."

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