Published 6-30-99 in the Washington Post
The Supreme Court ruled yesterday that the death penalty under most existing state and federal laws is unconstitutional.By a 5 to 4 vote the court held that executions for most murders, rapes and other crimes may not be carried out because they constitute "cruel and unusual punishment" in violation of the Eighth Amendment.
The historic ruling, which exceeded the expectations of death penalty abolitionists and angered many law enforcement officials, came in nine separate opinions, four of which were dissents by the four appointees of President Nixon.
The decision, which requires setting aside the death penalty for about 600 prison inmates across the country, seemed certain to spark nationwide controversy during the re-election campaign of a President who pledged to man the court with judicial conservatives.
Although the result was a dramatic climax to years of campaigning against capital punishment, the basic rule of law had to be pieced together from five separate concurring opinions.
Two justices, William J. Brennan, Jr. and Thurgood Marshall, based their vote on reasoning that would wipe out every death sentence. They found capital punishment incompatible with human dignity and morally unacceptable under evolving standards of justice.
A 3rd justice, William O. Douglas, went nearly as far in an opinion condemning the inequality in the penalty's impact throughout the population.
The 4th and 5th votes were cast by Justices Byron R. White and Potter Stewart, who found that the extreme penalty was so infrequently and "freakishly" imposed that its underlying rationale as a deterrent had lost its meaning.
When added up, the opinions appeared to leave room for automatic death sentences in certain defined categories of crime but very little leeway for executions where the sentencing is left to the discretion of judges and juries ...
Mandatory death penalties for such crimes as murder of a prison guard by a life termer were cited by Stewart as the kind of punishment that might pass muster as fulfilling the justifications advanced in favor of retaining execution ...
Strong and long dissents were filed by Chief Justice Warren E. Burger and Justices Harry A. Blackmun, Lewis F. Powell Jr. and William H. Renquist.
All 4 dissenters said they were personally opposed to capital punishment or would at least restrict it to a limited category of "the most heinous crimes."
But they said their personal views, or how they would vote as legislators, had nothing to do with performing their functions as judges. On that score, they said their duty was to uphold the penalty's constitutionality.
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