By LATEST COUNT, more than 600 persons are waiting on death row in prisons all over the country. The fate of most of them -- 634 men and 7 women -- is uncertain. The Supreme Court is still as deeply divided as it ever was over how many of them, if any, must die. That is the real meaning of the court's decision last week reversing the death sentences imposed on a Georgia man for murdering his wife and mother-in-law.
Two members of the court -- Justices Brennan and Marshall -- believe the death penalty is so cruel and unusual a punishment that it should be prohibited. Threee others -- Chief Justice Burger and Justices White and Rehnquist -- do not flinch so much from executions and want to place the decision in most death cases in the hands of state courts and state officials. That leaves the other four justices -- Stewart, Blackmun, Powell and Stevens. They are trying to work out a definition that permits capital punishment but sharply limits, in some rational way, the cases in which it can be used.
In the Georgia case, as in all death penalty cases these days, the view of the four prevailed. They said the defendant could not be executed because the state supreme court had interpreted Georgia law "so vaguely" that there was no principled way to distinguish between this murderer and other murderers on whom capital punishment was not imposed. Without such a logical distinction, the four justices said, a decision to execute one particular defendant is arbitrary and thus unconstitutional.
This search for a set of principles -- one might be to impose death sentences on all murderers who torture their victims before killing them -- puts the court in turmoil. Justice Marshall regards it as so impossible a task that he hopes it will lead his brethren to abandon both the search and capital punishment. Justice White regards it as equally impossible, but for a different reason. He thinks the court is embarking on a case-by-case review of almost every death sentence, a job he would assign to the state supreme courts.
Justice White is right about the direction in which his four prevailing brethren are headed. Death cases have always troubled the court more than any others. A death case, Barrett Prettyman Jr. Wrote years ago, "is the case [a justice] takes to meals and to bed; it is the case that lingers on in the mind long after it is decided.It finally drops way only because another death case, equally troublesome, has taken its place."
Signing off on any one of them without giving the facts, the law and now the sentencing procedure an extremely careful review is something many justices have been unable to stomach.
There are plenty of these cases around. In Georgia alone, 97 persons are waiting on death row. In Florida, 139. In Texas, 122. In Alabama, 38. In California, 32. And in the other states, 213. That is enough to keep the justices -- or the executioners -- busy for a long time. It should also be enough to persuade the court, once the justices have waded through the facts, there is no principled way to apply the death penalty and that it has no place in a civilized society.