Law in the news; Law in the news #416

The National Educational Radio Network presents Law in the News with Professor Joseph R. Jullin, Associate Dean of the University of Michigan Law School. In 1962, William L. Maxwell was convicted of raping a 35-year-old white woman in Hot Springs, Arkansas. Maxwell is Negro. He was sentenced to death by the jury, the Arkansas law providing that the death penalty shall be imposed unless the jury extends mercy. The conviction and sentence were upheld in the Arkansas Supreme Court in 1963. Maxwell sought review in the federal courts in 1964 but to no avail. He argued there that the unfettered discretion of the jury to grant mercy in fact provides a cover for discriminatory law enforcement. In 1966, he again sought federal review, claiming the death penalty is discriminately applied against Negro defendants convicted of raping white women and claiming race was the dominant

factor in the imposition of the death penalty in rape cases in Arkansas. The federal district court and a habeas corpus proceeding refused to conclude the defendant had demonstrated his sentence was racially motivated. The United States Circuit Court of Appeals affirmed. The United States Supreme Court did agree however to review the case, and in early March of this year, the court heard oral argument. How much we can trust a jury was very much in issue, as was the question as to whether due process demands that important distinctions, such as who shall die and who shall live, must be made according to objective rules. Counsel for the condemned man, you see, indicated early in the argument that he was not questioning the right of Arkansas to impose the death penalty, but was putting an issue the way in which it is determined who among convicted rapists will live and who will die. There are apparently no controlling standards under the Arkansas law. The accused and his counsel are hard pressed to know just what evidence will lead a jury

toward or away from the death penalty. As a result, so the argument went, the right to counsel is made an illusion when a jury operates without any guideline or one could say operates on a lawless basis. At the oral argument, before the United States Supreme Court, counsel for the condemned Maxwell stated that not only did the jury lack standards requiring the taking of various factors into consideration, but it did not have standards that would authorize even a judge to direct the jury's attention to specifics. There are no prerequisites to the imposition of the death penalty or the granting of mercy. The evil urge upon the Supreme Court, as sufficient to demand a reversal of the death sentence, is that the penalty to be exacted by the state on verdict of the lay jury is necessarily whim or caprice, a basis which inevitably results in different treatment for different defendants without cause. The argument of the state of Arkansas in the support of the jury, which has the task

of determining guilt or innocence of a crime, which can bring forth the death penalty, is that the jury, that is the jury determining guilt or innocence, is permitted to extend mercy by positively recommending the death sentence be bypassed in favor of a prison sentence. And the argument goes, this is a significant step away from an automatic death penalty. It does seem clear that there is a move away from capital punishment in the nation and to this extent Arkansas seems to be falling in line. Only recently the Supreme Court set this case for re-argument when the high court reassembles this next fall. Perhaps the reason is the significance which the case has not only on the issue of capital punishment and the racial overtones here involved, but on the entire sentencing process, with a jury by state or federal law plays a role. After all, one must bear in mind that it has been argued in this death sentence case, that the jury with the power to declare mercy should be the rule. Mercy, in the form of imprisonment rather than death, was acting in pursuit of a lawless

exercise of power unless specific standards were provided. If the United States Supreme Court decides in favor of the condemned William L. Maxwell, on the ground a single jury should not determine both guilt and penalty, or on the ground standards were absent, this could very well have significant impact on the whole sentencing process, whether by lay jury or professional jurist. And perhaps this isn't all bad. As we learn more about human behavior, we more understand that letting the punishment fit the crime, perhaps is not as important as letting the punishment fit the guilty. Professor Joseph R. Juleen, Associate Dean of the University of Michigan Law School, has presented law in the news, recorded by the University of Michigan Broadcasting Service. This is the National Educational Radio Network.