Death Wish Denied

An execution is stayed, but others may be on the way

On the day after Christmas 1976, John Louis Evans and a friend he met in prison, Wayne Ritter, rented an Oldsmobile Cutlass and went on a spree. By Evans' count, the pair committed 37 robberies, two extortions and nine kidnapings. When they got to Mobile, Ala., Evans shot a pawnbroker in the back while the victim's two daughters, aged 7 and 9, looked on. It was all a "deadly game," says Evans. "I was planning on dying. I would never go back to prison."

Last week Evans came within six hours of getting just what he planned for. Condemned to die, he had finished eating his last supper a few yards away from the electric chair in Holman prison near Atmore, Ala., when a last-minute appeal to the U.S. Supreme Court won him a stay of execution. Evans did not ask for it; his mother did. Evans had told reporters that his death would be the "one constructive, positive act in a blasted life."

Evans first made his death wish known at an unusual televised trial. Accused of murder and robbery, Evans and Ritter both threatened to murder the jurors, too, if they acquitted the pair. A shocked jury took all of 15 minutes to convict. Ritter lost his urge to die during the two years he has spent sitting on death row, and is still appealing his case. But Evans asked only that he be put to death by a lethal injection, so he could donate his organs to medicine (burning them by electrocution, he has said, would be a "waste").

Opponents of the death penalty appealed the death sentence four times, to no avail. Finally, last week, Evans' mother went to the high court. Justice William Rehnquist, a supporter of the constitutionality of the death penalty, somewhat grudgingly put off the execution to give the full court a chance to hear Mrs. Evans' arguments. When her son got the news, he wept and said, "I will have to go through all this again." At the earliest, Evans could go to the chair in mid-May.

Only one man has been executed since 1967: Gary Gilmore, who also asked to die, and was killed by a firing squad in Utah two years ago. But unless the law takes an unexpected turn toward leniency, a decade-long de facto moratorium on the death penalty may come to an end starting this summer. If so, many condemned men who definitely want to live will die.

As recently as 1972, it looked as if the death penalty would soon go the way of the lash and the rack. That year, in Furman vs. Georgia, the U.S. Supreme Court ruled that the death penalty was cruel and unusual punishment, as Justice Potter Stewart put it, "in the same way that being struck by lightning is cruel and unusual." It had been applied "wantonly" and "freakishly"--most often against poor blacks. But four years later, the court approved new capital punishment laws designed by individual states to be less arbitrary. Typically, the laws allow juries to hand down a death sentence only after weighing "aggravating circumstances," such as the murder of a police officer or the torture of a victim, and "mitigating circumstances," such as a killer's age or emotional state. Now 35 states have the death penalty, and death row, emptied by Furman in 1972, has a population of about 500.

Opponents of the death penalty insist that the new laws still work unfairly. The argument on the effect of race has taken a new twist: killing a white is more likely to bring the death penalty than killing a black. In Alabama, for instance, on the basis of 1,395 murders and 41 death sentences, it is twelve times more likely. Even though roughly equal numbers of blacks and whites were killed in Georgia, Texas and Florida from 1973 to 1977, 90% of the convicts on death row got there by killing whites, according to a study by Sociologists William Bowers and Glenn Pierce of Northeastern University.

Lawyers for John Spenkelink, a white drifter sentenced to death for murdering another white in a Florida motel room six years ago, tried this argument on the U.S. Court of Appeals for the Fifth Circuit. The court rejected it, and last month the U.S. Supreme Court refused to hear the case. The Spenkelink decision is important. The Fifth Circuit covers the six Southern states (Alabama, Florida, Georgia, Mississippi, Louisiana and Texas) that have 75% of all the prisoners now on death row. It means that Spenkelink has nearly exhausted all possible legal remedy, and scores of inmates in other Southern states are closer to death. There will be no sudden bloodbath, predicts Legal Defense Fund Lawyer John Boger, but unless Florida Governor Robert Graham grants clemency, the state's electric chair will be back in use this summer for the first time since 1964.

The N.A.A.C.P. Legal Defense Fund, which has led the fight against capital punishment since the late '60s, now finds itself hard pressed. A big reason why no one has died except Gilmore since 1967 is that L.D.F. lawyers have been racing around the country filing last-minute appeals. But without broad constitutional arguments, lawyers will have to fight each case on the facts of the crime and technicalities of conviction. A network of local defense lawyers, including the Southern Poverty Law Center, which is trying to save Evans, has sprung up to help stave off executions, but L.D.F. Lawyer Joel Berger predicts "within a year there will not be enough doctors in the emergency room."

Whatever the legal merits of the L.D.F.'s stand, there is no doubt that most people in the U.S. want capital punishment. It was not always so: in 1966 a Gallup poll showed more people against the death penalty than for it. But high crime has helped change many minds. By September 1978 a Gallup poll estimated that 62% favored the death penalty, only 27% opposed it. No one has been able to prove conclusively that the death penalty deters murders, but the feeling persists that some crimes are so awful that the criminal deserves to be executed. Whether people will still feel that way once condemned men actually start to die again is open to question.

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