Court Rejects Punishment by Association : Ruling: Justices decide that membership in a racist gang is not relevant to whether a defendant should receive the death penalty or a life term.

In a rare victory for a Death Row inmate, the Supreme Court ruled Monday that a jury imposing a sentence in a capital case should not have been told that the prisoner belonged to a white racist gang.

On an 8-1 vote, the court concluded that mere membership in a prison gang is “totally without relevance” to whether a convicted murderer should die or be sentenced to life in prison.

Chief Justice William H. Rehnquist, writing for the court, relied on a series of 1960s-era rulings involving civil rights activists and the National Assn. for the Advancement of Colored People. The court concluded then that the First Amendment’s protection of free speech includes a related protection for “freedom of association.” The Constitution thus forbids government officials to penalize someone solely because of his membership in an organization.

David Dawson, an inmate on Delaware’s Death Row, had challenged his sentence in the Supreme Court because prosecutors had told the jury that he had the words “Aryan Brotherhood” tattooed on his hand. He also had swastikas tattooed on his back.

Attorneys for Dawson contended that he was being punished in part because of his membership in a loathsome group. Jurors were told that the Aryan Brotherhood was a “white racist prison gang that began in the 1960s in California in response to other gangs of racial minorities.”

But prosecutors did not present evidence that Dawson had participated in violent activities because of the gang. Rehnquist also noted that Dawson, who is white, had murdered a white woman, Madeline Kisner, shortly after escaping from a prison in 1986.

Because prosecutors had not shown that Dawson’s membership was relevant to judging his character or behavior, the chief justice concluded that the death sentence must be vacated.

But the court’s opinion in the case (Dawson vs. Delaware, 90-6704) was narrowly worded and does not set a broad principle of law. Rehnquist gave the Delaware Supreme Court a chance to reconsider the case and perhaps rule that the inclusion of Dawson’s gang membership was a “harmless error.”

If so, Dawson’s death sentence would stand. Otherwise, prosecutors must schedule a new sentencing hearing for him.

Justice Clarence Thomas, the court’s lone black member, filed an 11-page dissent, accusing the majority of “ignoring reality” about racist gangs. “In my judgment, a jury reasonably could conclude from Dawson’s membership in a prison gang that he had engaged in some sort of forbidden activities while in prison,” Thomas wrote.

He noted that Dawson was entitled to tell jurors that he belonged to worthy groups, such as Alcoholics Anonymous. As a matter of balance, prosecutors should be permitted to tell jurors the inmate also belonged to unsavory groups, Thomas argued.

Thomas’ vote in the Delaware case marked the first time in 23 signed decisions that he has not agreed with Justice Antonin Scalia.

The court also agreed to decide whether a city can ban sidewalk news racks containing free newspapers or advertising flyers. In 1987, the court ruled narrowly that the First Amendment did not allow a city to ban racks of traditional newspapers.

Last year, a federal appeals court applied the same principle to strike down a city ban on news racks containing free magazines, material that city lawyers had described as advertising flyers. In their appeal of the case (Cincinnati vs. the Discovery Channel, 91-1200), city lawyers relied on court precedents, stating that “commercial speech,” such as advertising, does not deserve the same level of First Amendment protection.