Is Court Too Split to Sanction Death? : 5-4 Votes May Signal It Lacks Legitimacy to Open Floodgates

The two death-penalty decisions that the U.S. Supreme Court announced last week involve drama and importance beyond the specific legal issues decided.

In allowing the eligibility for execution for persons who did not intend to kill, and in sustaining Georgia’s system of administering the death penalty against a statistical illustration that it far more frequently leads to death sentences for those who kill whites, the court has expanded on its increasingly permissive jurisprudence of capital punishment. The court has also shown itself to be closely divided on the death-penalty issue. Yet, ironically, it may have set the stage for a sharp increase in executions.

Throughout the 1980s, without significant interruption, the court has been resolving any doubts about the constitutional validity of state death sentences that come before it. The trend was so clear that an article of the court’s work some years ago was called “Deregulating Death.” Viewed from this perspective, the two cases are vintage examples of deregulation.

The majority opinion in the Arizona case allows the imposition of a death sentence to be based not just on an intent to kill but also on a more-than-peripheral involvement in the commission of a dangerous felony if one of the other felons kills. Although the opinion somewhat narrows the scope of one of the court’s previous decisions, the issue raised in Tison vs. Arizona was not a central challenge to the systems of capital punishment that are in place in most American states.

But McCleskey vs. Kemp, decided on Wednesday, involved a challenge to the entire system of death sentencing in most states. In McCleskey, a prisoner charged that the system that produced his death sentence was racially discriminatory because killers of white victims in Georgia, as he was, were far more likely than killers of black victims to be convicted of capital murder and sentenced to death. Supporting the petitioner’s claim was one of the more elaborate and careful statistical studies of sentencing patterns ever to be used in capital punishment litigation. And although that study concerns Georgia alone, significant “race-of-victim” effects have also been found in many other states, in the North as well as in the South.

Although the Supreme Court’s judgment in McCleskey upheld the Georgia system, the comfortable majorities with which the justices had lent their imprimatur to capital punishment seem to have disappeared. The standard division on a constitutional case involving the death penalty throughout the 1980s was 7 to 2, with Justices William J. Brennan Jr. and Thurgood Marshall filing lonely and predictable dissents. This era of consensus seems to have passed, and history may give more attention to last week’s decisions as evidence of the court’s lack of consensus than for its holdings on the specific issues argued.

Both of the decisions were decided by 5-4 majorities. And there are indications that this barest majority is an insufficient foundation on which to legitimize a practice as divisive as the execution of prisoners in a late 20th-Century democracy.

In the old joke it is announced that the board of directors passed a resolution wishing a speedy recovery to the chief executive officer by a vote of 4 to 3. The point of the joke is that some sentiments need to be more widespread before their communication acquires institutional credibility. The serious question now is whether a Supreme Court that is divided 5 to 4 has institutional credibility as it argues that executions can be an acceptable part of a modern American governmental system.

In retrospect, one of the flaws of Furman vs. Georgia, the 1972 case that seemed to signal the end of executions in America, was the fact that only five of the nine justices endorsed the result. That bare majority seems no less fragile, and perhaps no less unstable, when the swing vote is pointed in the opposite direction.

One irony of the court’s new and close division concerns the practice of executions. Observers have been waiting for a “bloodbath” for a decade now. Yet the deluge has not come. There are currently about 1,900 prisoners on Death Row in the United States, yet executions have never exceeded 21 in any year. Some observers have been calling the race-of-victim argument in McCleskey the last powerful general challenge to state systems of capital punishment.

But these observers have characterized earlier challenges before the Supreme Court as the last credible challenge before the bloodbath. The deluge of executions did not come after these arguments lost. A number of other legal challenges remain available to death-penalty opponents, not the least substantial being that the current system of selecting those to be executed is as chaotic and unprincipled as the regime struck down by Furman vs. Georgia.

But there would be a high irony if the states were to start executions in earnest just as the moral authority of a substantial majority in the U.S. Supreme Court had ceased to exist.

One reason the debate over executions has not been more acrimonious in the United States, particularly in the North, has been the absence of executions. Arguments about capital punishment have an abstract quality in California, Illinois and Pennsylvania--prisoners have not been executed in those states. But if an epidemic of executions is finally just around the corner, the terms of the debate about capital punishment may be changing. And historians of the future may regard the close division of the Supreme Court in the spring of 1987 as an important element in that change.