Death on Trial

The Supreme Court has in the past considered a variety of legal attacks on capital punishment and responded with varying--and mostly peripheral--rulings. In none of those cases did it answer a central question: Has the death penalty become cruel and unusual punishment in violation of the Eighth Amendment? Last week the court agreed to hear arguments when it reconvenes next fall on that specific question in four cases involving convicted rapists and murderers.

Many legal scholars doubt that the Burger Court will eliminate capital punishment; among other indicators, they cite an earlier case, in which a death sentence was upheld. Justice Black wrote a concurring opinion stating, "It is inconceivable to me that the Framers intended to end capital punishment by the [Eighth] Amendment." On the other hand, last week the court saved 39 prisoners from execution, including Richard Speck, who killed eight student nurses in Chicago in 1966. The convictions of the 39 were not affected, but the sentences were set aside on the basis of a 1968 decision which held imposition of death unconstitutional if opponents of capital punishment had been automatically excluded from the jury.

However the court rules on the argument that capital punishment is cruel and unusual, its decision to consider it means another extension of the 3 1/2-year-old U.S. moratorium on executions.

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