Living on Death Row

The Supreme Court in 1972 declared that the death penalty as it had been imposed in the U.S. violated the Eighth Amendment's cruel and unusual punishment clause. Though the decision was widely interpreted as ending capital punishment altogether, that conclusion is premature. Three of the court's five-Justice majority keyed their constitutional objections to the "arbitrary," "capricious" and "freakish" choices made by sentencing judges or juries in determining which convicted defendants should be executed. To meet those objections, 30 states have made death the mandatory sentence for certain offenses.

Thus at least 186 men and two women are currently under threat of execution.

Now the Supreme Court has agreed to decide before June whether the mandatory provision makes constitutional the death sentence of one convict, Jesse Fowler. His case appropriately originated in North Carolina, which has one of the stiffest new statutes. It now has by far the nation's largest death-row population. TIME Correspondent Jack White recently visited Fowler and the other condemned inmates.

Almost weekly the overpopulated death row at Central Prison in Raleigh grows more crowded. Nine more men arrived last month, raising the total of those awaiting asphyxiation in the gas chamber to 62 men. Two women facing execution are confined in another Raleigh prison. The rapid influx has long since filled the 42 dingy cells in Central's F-block that were originally designated death row, and some inmates are being held in other cell blocks. Says Warden Sam Garrison: "If this keeps up, we will have to start doubling up the men in the cells."

That would be yet another torment for the inmates, some of whom have been in their strange purgatory for as long as 18 months. They are confined 22 hours a day in 6-ft. by 9-ft. cells, emerging only to eat and spend 60 minutes in the recreation pen. They are allowed one hour-long visit each week by a relative; visits by friends must be approved by prison authorities.

One Paper. The cell walls are concrete, and the only way an inmate can see the face of the man next door is by holding a mirror at arm's length through the steel bars at the front of the cell.

Reading material for the 38 blacks, 20 whites and four Indians is scarce. Every day a single newspaper is delivered to each of the three tiers. It makes its way section by section down the row of cells. Books and magazines are even scarcer. The inmates pass their days in numbing boredom.

Though their common fate--and the prison policy of segregating them from all other prisoners--has knit the men of death row into something of a fraternity, racial antagonism remains.

Tommy Noell, 21, a black onetime high school football star who was convicted of raping a white woman and has a white wife, was stabbed recently by a white inmate. Other blacks angrily threatened the assailant. Said one: "We warned him that if anything like that ever happened again, he would pay for it."

Many of those on death row live with a special anguish; they face execution for crimes that are no longer capital offenses in North Carolina. In 1973 the state supreme court ruled that for all crimes that once carried an optional death sentence, execution must now be the punishment. Then the state legislature passed a somewhat more lenient law, which last April changed the penalty to life imprisonment for arson, first-degree burglary and nonforcible rape. But the lawmakers did not see fit to make it retroactive.

Johnny Boyd, 37, learned of the new law while awaiting his sentence on a first-degree burglary conviction. He discovered that it did not apply to him because he had committed the crime before the statute was passed. Since then, he says, "every day has been the bottom pit of hell. I never get away from the fact that the chances are they may march me to that gas chamber."

Now the hopes of the condemned focus on the Fowler appeal. A tenth-grade dropout, Fowler, 26, was convicted of killing a man after a fight in July 1973. At his trial, he recalls, "I didn't know anything about the death penalty. I didn't believe that they would give it to a black man for killing another black man." Fowler has maintained a certain fatalistic nonchalance through his 14-month confinement. He wears a cap with the motto "Death Before Dishonor," and refuses cigarettes because "Smoking is hazardous to my health."

No one has been executed in North Carolina since 1961 or in the U.S. since 1967. In his appeal for Fowler, Attorney Charles Becton of Chapel Hill will argue that the death sentence not only violates prevailing standards of justice but is also still being capriciously applied. Fowler could just as easily have been convicted of manslaughter or second-degree murder, neither of which now carries the death penalty. "If they kill me," says Fowler, "it'll be nothing more than premeditated murder."

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