Chipping at the Death Penalty

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But the edifice of capital punishment is being weakened, as various parts of it are challenged in court and in the political arena. Consider three cases now before the US Supreme Court:

• In one of them, a Virginia case, the court will decide whether mental retardation is grounds for ruling out use of the death penalty. Specifically, does an individual like the murderer in this case, who has a low IQ, fully understand the difference between right and wrong, and thus have the culpability that warrants the ultimate penalty? The defense argues that putting such people to death is a form of "cruel and unusual punishment" prohibited by the Constitution. An increasing number of states, 18, now forbid execution of the mentally retarded.

• In another, a Texas death-row inmate won a stay of execution from the high court after arguing that blacks were systematically excluded from the jury that convicted him. Such discrimination in jury selection is unconstitutional, but proving that it exists can be hard. In this case, the inmate's lawyers hope to show that prosecutors in Dallas, where the trial was held in 1986, had a formal policy of keeping blacks and other minorities off juries.

• The third case, out of Arizona, raises the question of whether judges, not juries, should be able to impose the death penalty. Nine states allow judges to make that decision. The argument here is that such momentous decisions should be kept in the hands of a jury, in accord with the Constitution's guarantee of trial by jury.

But these cases only chip away at capital punishment. No matter how the high court rules, issues such as execution of the retarded and racial bias won't go away. Neither will profound concerns about the possibility of executing the innocent. Legislatures and the public, as well as courts, are wrestling with these questions.

The ultimate answer will be for the US to join much of the rest of the world in relegating the death penalty to history.