Are Mandatory Capital Statutes Unconstitutional?
On 21 April during the final week of oral argument in the 1975 term, the United States Supreme Court for the first time in three years listened to oral argument on capital punishment. In 1973, Jesse T. Fowler had been convicted of first degree murder and sentenced to death, as required by the mandatory death penalty law then in effect in North Carolina. At issue in the case was not only Fowler's fate and that of fifty other persons under death sentence in North Carolina, but a larger national question. Would the Supreme Court, after an interval of three years, undertake to expand further its controversial ruling against the death penalty in Furman v. Georgia? Or, instead, would the Court yield to other pressures and begin to narrow and whittle it away?
In June 1972 the Court ruled in Furman that "the imposition and carrying out of the death penalty . . . constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." The Court's reasoning was based on the "freakish" and "selective," "capriciously random" fashion with which the death penalty was actually imposed. The Court did not, however, summarily rule unconstitutional all possible death penalty provisions. It confined itself exclusively to the laws and procedures for inflicting capital punishment where the courts had "unfettered discretion" to bring in a sentence of death or of life. Chief Justice Warren E. Burger noted in his dissent that "if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made." The Fowler case presents the Court with one of the two major forms of capital punishment left untouched by the Furman ruling: statutes that make "mandatory" the imposition of the death penalty once an accused has been convicted of a "capital" crime, such as first degree murder.
In the three years since Furman, several developments have taken place that are likely to affect the decision of the Supreme Court in the Fowler case.
Even though executions have occurred since Furman, thirty-one states have enacted new death penalty legislation, in which capital punishment has been authorized either as the "mandatory" penalty for certain crimes, or as a penalty that the jury may impose under "guided discretion" from statutory standards that attempt to define which "capital crimes" truly deserve death and which deserve imprisonment. 1
Over two hundred persons are now under sentence of death in twenty states. Their race and sex breakdown reveals that more than half are black ( Jesse Fowler among them), and all but two are men. 2 These characteristics, so typical