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
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
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. …