High Court to Take Up Death Penalty for Minors

Mopping up after the completion of its 1987-88 term, the Supreme Court announced Thursday that next fall it will consider two unresolved questions on the constitutionality of the death penalty: Does the ban on “cruel and unusual punishment” forbid executions of killers who are mentally retarded or who are under age 18?

The justices Thursday issued a series of one-line orders dismissing or granting reviews in scores of pending cases, one day after they had issued their last nine written opinions for the current term.

The death penalty appeals will be heard after the high court returns in October.

Agent Orange Case Ends

And, by turning down further appeals, the justices ended years of litigation over the use of Agent Orange in Vietnam and cleared the way for a libel trial in the case of a Tennessee congressman who publicly criticized a legal services attorney.

The action in the Agent Orange case will permit distribution of a $180-million settlement between Vietnam War veterans and the makers of the chemical. Without admitting guilt, the companies had agreed to the settlement, but it was put on hold while a separate group of 300 veterans appealed to the high court seeking to reinstate a lawsuit against the manufacturers. The dismissal of that appeal ended the case (Lombardi vs. Dow Chemical, 87-620).

In the libel case, Rep. Don Sundquist (R-Tenn.) had contended that the Constitution gave him and fellow legislators immunity for their public statements, but only three of the nine justices agreed to hear his appeal. A lower court had said in the case (Sundquist vs. Chastain, 87-1756) that congressional immunity covers only statements made in the House or Senate, not press releases or letters to government officials.

Death Sentence Voided

The capital punishment cases will give the nine-member court a chance to clarify its view on the constitutionality of imposing the death penalty on juvenile murderers. In a split opinion Wednesday, an eight-member court invalidated the death sentence of an Oklahoma man who was 15 when he murdered his brother-in-law.

Four justices said that executing a juvenile is cruel and unusual punishment, while Justice Sandra Day O’Connor agreed to spare the life of Wayne Thompson only because Oklahoma had not by law set a minimum age for executions. Three others voted to uphold the death sentence and new Justice Anthony M. Kennedy did not vote.

As a practical matter, the high court ruling appears only to have spared the lives of the nation’s three Death Row inmates who committed murders at age 15: Thompson, Paula Cooper of Indiana and Troy Dugar of Louisiana.

In its next term, the court will hear appeals from Missouri Death Row inmate Heath Wilkins, who murdered a store clerk in 1985 when he was 16, and Georgia inmate Jose Martinez High, who was 17 when he killed an 11-year-old boy during a robbery (Wilkins vs. Missouri, 87-6026, and High vs. Zant, 87-5666).

Penalty Called Cruel

Lawyers for both men contend that imposing the death penalty on a juvenile is cruel and unusual punishment. The key vote in these cases probably rests again with O’Connor, a former state legislator who said Wednesday that she is strongly inclined to let state legislatures set a minimum age for capital punishment.

The court agreed also to hear the appeal of a convicted Texas killer, Johnny Paul Penry, who his lawyers say has the intelligence of a 7-year-old (Penry vs. Lynaugh, 87-6117). They argue that it is unconstitutional to execute a person with such a “limited mental capacity.” In the past, the court has ruled that persons who are insane may not be put to death, but it has not been decided whether mentally retarded persons should be spared.

In another action, the court agreed to decide whether California lawyers may use testimonials from clients to advertise themselves (Oring vs. State Bar of California, 87-1224). The California Bar Assn. prohibits such advertising because it is considered misleading. After Los Angeles lawyer Mark H. Oring was reprimanded for running a radio ad in which a client praised his work on her auto accident case, he appealed all the way to the Supreme Court, contending that the rule violates his right to free speech.