The US Supreme Court, which so far has refused to outlaw the death penalty as ''cruel and unusual'' punishment, is now considering a new question that deals with states' fairness in imposing sentences of execution.
In the case of Pulley v. Harris, argued before the high court on Monday, the issue was whether the Constitution requires state courts to measure each death sentence against every other sentence imposed on people convicted of capital crimes.
The court could decide this matter on the narrow basis of the California case before it. Or it could hand down a broader decision that might affect many of the 1,200 people now on death rows across the United States.
Some type of ''proportionality'' review of sentences meted out to those convicted of major crimes is already mandated in 34 states. But the court may insist that these guidelines are necessary in all states, and it may also set up its own uniform standards.
The issue recently fell under the national spotlight when Associate Justice Byron R. White issued a last-minute stay of execution to convicted Texas murderer James David Autrey, pending the Supreme Court's decision in the Pulley case.
Last spring, the high tribunal, in a noncapital case, narrowly ruled a sentence cannot be ''disproportionate'' to the severity of the crime. The decision reversed a lower court which had given a life sentence without possibility of parole to a repeat offender of nonviolent crimes.
In the Pulley case, Robert Harris, a parolee on a homicide conviction, confessed to the murder of two teen-agers and was sentenced to death. An execution date was set. However, the Ninth US Circuit Court of Appeals stayed the execution until California's state Supreme Court conducted a proportionality review of his sentence.
California wants the US Supreme Court to vacate the state court order, arguing the case has had a thorough hearing through the judicial system and the defendant has received ''all the process he is due.'' On the other hand, Mr. Harris's lawyers argue that the high court should require California to set up some type of proportionality review before deciding the issue in this case.
Proportionality is but another nuance of the capital punishment issue, which has sharply divided the Supreme Court for more than a decade. In 1972, the Supreme Court - by a 5-to-4 vote in Furman v. Georgia - stopped short of striking down the death penalty by invalidating individual state laws that it said were being imposed ''wantonly and freakishly'' on a few ''capri-ciously selected'' people convicted of capital crimes.
States were then required to set up specific standards under which the death penalty could be imposed. And just last month, the Court of Military Appeals - the nation's highest legal tribunal for the armed forces - halted military executions until Congress or the President establishes guidelines similar to those called for by the US Supreme Court 11 years ago.
Since the landmark Furman case, the high court reviewed a spate of newly written state death-penalty statutes and struck down those it deemed unfair or unduly harsh. For example, it said execution was too harsh a punishment for the driver of a getaway car for thieves who killed a victim. However, recently the court has upheld the death penalty in several cases despite claims of inequalities in the sentencing procedure. The court has also shown a willingness , of late, to simplify and perhaps speed up the appeals process, which has kept many convicts on death row for years.
Public opinion has swung back and forth on the death penalty - with polls showing most Americans now favoring it. Congress has so far sidestepped the issue.