Boston — When John W. Carlin was elected governor of Kansas in November 1978, he indicated he would sign a capital punishment bill if one reached his desk and if his advisers deemed it constitutional.
In each of the next three years, however, Carlin vetoed such legislation. He had changed his stance on the emotion-charged issue.
The latest rejection, which came Feb. 21, thwarted the efforts of Kansas lawmakers to restore the death penalty as an alternative to life imprisonment for persons convicted of premeditated murder or killings in connection with kidnapping, rape, or sodomy.
While the capital punishment battle in Kansas is over for this year, the issue is anything but dead in at least a half-dozen other states -- Massachusetts, New Jersey, New York, Ohio, Vermont, and West Virginia.
In New York, for example, legislation to bring back the electric chair has passed both the General Assembly and the state Senate, clearing the latter March 23. But foes of the measure, including leaders of the American Civil Liberties Union (ACLU), hope that it can be kept off the statute books by Gov. Hugh L. Carey. He must sign the measure and he had made known his opposition to the death penalty.
The bill's future could depend on whether its backers can pick up at least three additional votes in the assembly to reach the two-thirds needed to override a gubernatorial veto. The convincing 37-to-17 tally by which the measure passed the state Senate would indicate smoother sailing in that chamber.
New york, like most other states, had its capital punishment law struck down as unconstitutional by the US Supreme Court in 1972. The Empire State had executed 615 convicted murderers prior to 1963 when such punishment was suspended.
Death-penalty legislation in New Jersey passed the state Senate last November and is expected to come up in the state Assembly in early April. The measure, like the one in New York, seems headed for a veto by Gov. Brendan T. Byrne, who has stated his opposition. Prospects for overriding his veto are uncertain.
Thirty-three states now have death penalty laws on the books, most of them enacted during the last five years. Three others --Massachusetts, Ohio, and Oregon -- also had such measures, but they since have been wiped out by the courts on state constitutional grounds.
Efforts are well under way in the Bay State to amend the Massachusetts constitution, with the required second approval by the state legislature expected later this year and submission to voters expected on the November 1982 statewide ballot.
Similarly in doubt is the future of capital punishment in Alabama, one of the states with a death penalty on the books. The US Supreme Court last June found much of the statute unconstitutional because of restrictions it placed on the options for juries.
At the time of the high court's ruling, 32 convicted murderers were on the state's death row.
Nationally, the latest estimates place about 850 convicts in 30 states on death row. This is an increase of nearly 250 over the past two years.
Death-row inmate populations range from none in Colorado, Connecticut, New Hampshire, and South Dakota, to 137 in Texas and 150 in Florida.
Figures supplied by the NAACP Legal Defense and Education Fund, which compiles a death-row head count periodically, show that as of last Dec. 20, there were 717 such prisoners. Of them, 390 were white, 290 black, 32 Hispanic, 3 Native American, and 2 Asian. All but nine were males.
Despite continuing and stiffening opposition, support for capital punishment appears to be growing.
A Gallup poll in early February showed that two-thirds of those surveyed favor the death penalty for premeditated murder, a rating that is the highest in 28 years. A similar opinion sampling by the same organization a decade ago found only 49 percent public support.
The latest Gallop poll showed that while 66 percent of those questioned favored capital punishment for murders, 68 percent did not approve it for hijacking, 53 percent disfavored it for rape, and 49 percent did not support it for treason.
Although no less determined to do whatever they can to prevent passage of such statutes and block executions of condemned murderers, capital punishment foes generally see a rough road ahead based on conservative gains in lawmaking bodies and public attitudes favoring harsher penalties.
However, only two of those now sentenced to death appear to be close to execution, according to Henry Schwarzchild of the ACLU.
He notes that three of the four convicted murderers who have been executed since the death penalty came back, including Steven T. Judy who was put to death in the Indiana electric chair March 9, refused to fight their sentence. "There is not much that can be done in such consentual situations," he emphasizes.
The other three executions were those of Gary Mark Gilmore, by a Utah firing squad Jan. 17, 1977; Jesse W. Bishop, in a Nevada gas chamber on Oct. 22, 1979, and John Spenkellink, in a Florida electric chair on May 25, 1979. Only the latter cooperated in fighting his execution until all recourses were exhausted.
Boosters argue that capital punishment deters crime, that long jail sentences are an economic burden, that prisons do not rehabilitate, and that those who kill should pay with their life. Foes of the death penalty maintain that it is not a deterrent, that people can be rehabilitated, that the legal system is not equitable (poor and minority-group Americans make up a disproportionate number of prisoners on death row), and that executions are contrary to the Biblical command "Thou shalt not kill."
Governor Carlin, in vetoing the Kansas legislation, noted that "the question of whether or not a society should sanction the taking of a life is the most profound any man can address." He, like many other critics of capital punishment , suggests that life imprisonment without parole should be used instead of executions.
Most of the laws enacted in recent years provide for a two-step arrangement under which juries first decide if a defendant is guilty of a capital crime and then whether to impose the death penalty. In the latter proceedings, aggravating or mitigating circumstances are usually taken into consideration.
Methods of execution vary from state to state. Arizona, California, Colorado , Maryland, Mississippi, Missouri, Nevada, North Carolina, and Wyoming use gas chambers; Delaware, Montana, New Hampshire, and Washington use hanging; Idaho, New Mexico, Oklahoma, and Texas use lethal injections; Utah uses a firing squad; and the rest use electric chairs.
Besides Massachusetts, Ohio, and Oregon, where death penalty laws were struck down within the past six months, the states without capital punishment on their books are Alaska, Hawaii, Iowa, Kansas, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, New York, Rhode Island, West Virginia, and Wisconsin.