Grisly Relic of History

Once again the Burger Supreme Court has ruled on a phase of the death penalty. Once again the court, in a 7-2 decision, has opened the door to the execution chamber for more candidates for death in a society that extols the sanctity of human life but says that those who kill shall be killed.

The court this week made it easier for prosecutors to bar from juries persons who express reservations about capital punishment in murder cases that could result in the death penalty. In doing so the court modified a 1968 ruling that said jurors could be excluded only if a trial judge found it “unmistakably clear” that they would automatically vote against capital punishment. The new standard allows jurors to be excluded if they express views that would “prevent or substantially impair” their ability to follow the judge’s instructions on the law.

Justice William H. Rehnquist, writing for the majority, argued that the 1968 standard had been applied so rigorously that jurors with serious doubts about the death penalty were allowed to serve, although their doubts tended to bias them in favor of the defense. But Justice William J. Brennan Jr., in a dissenting opinion, observed that the new standard would inevitably result in juries that would not represent a “fair cross-section” of the community, and would instead allow the selection of juries “biased” against a defendant. The prosecution, he contended, can now “mold to its will” juries that will increase the prosecutor’s chances of obtaining a conviction and death sentence. This, Brennan said, is repugnant to our “fundamental notions” of a fair trial.

So the death-penalty argument goes on, and will go on, inside and outside the court, because it is an issue that raises questions about basic values in this country, which, alone among Western industrial democracies, maintains capital punishment.

Advocates of the death penalty claim as their principal argument that it is a deterrent against murder, but, as criminologist James Q. Wilson of Harvard University has noted, the available evidence does not support that view. Nevertheless, polls say--and we believe them to be accurate-- that the death penalty is favored by probably 70% of Americans. But we remain convinced that there will come a better day. When that day comes, the death penalty will be abolished as a grisly relic of history and unworthy of a just society.