NEW YORK - Is it really a ``potentially irrelevant factor'' - whatever that may mean - that in Georgia from 1973 to 1978 those who murdered white people were 11 times more likely to receive the death penalty than those who killed blacks?
Is is true that American society ``does not reject the death penalty as grossly excessive'' for persons who may have been accomplices in a murder but who did not actually pull the trigger or plunge in the knife?
That's what the Supreme Court has concluded in two death penalty decisions handed down on consecutive days:
- The more important, reached by a 5-4 vote, held that Georgia's capital punishment law was not unconstitutional, even though statistics showed that its effect was racially biased.
- The other, by the same five-justice majority, broadened the circumstances in which courts may order the death penalty even for persons who did not actually commit a murder.
This court thus showed, if there had been any doubt, that a majority of its members have no misgivings, constitutional or otherwise, about capital punishment as administered in the United States today.
Its two recent decisions, taken together, seem likely to expand the discretion the Supreme Court allows state courts in ordering people put to death.
Justice Sandra Day O'Connor, who wrote the decision making it easier to execute persons who did not themselves actually commit a murder, relied heavily on the fact that 37 states have capital punishment laws; but only 11 of them specifically forbid the death penalty for accomplices in crimes where there was a substantial likelihood that someone might be murdered.
This suggests, O'Connor wrote, that society does not reject the death penalty as ``grossly excessive'' for accomplices to murder.
That reasoning suggests that the number of states that legislate in a certain fashion can determine what is or is not constitutional, and that constitutionality itself is dependent on what may be societally acceptable, or at least not considered ``grossly excessive.''
The majority opinion written by Justice Lewis Powell in the Georgia case seemed particularly tortured in its reasoning and callous in its language.
Not only did it dismiss the question of racial bias, as demonstrated in an extensive statistical study by David Baldus of the University of Iowa Law School, as ``a potentially irrelevant factor'' in Georgia's administration of capital punishment. …