The New York Times

Tuesday, October 21, 1997

Supreme Court Roundup

Justices Refuse to Review Texas Death Penalty Case

By LINDA GREENHOUSE

WASHINGTON, Oct. 20 - With an unusual public statement by four Justices, the Supreme Court today refused to hear a case challenging a provision of the Texas death penalty law. The law prohibits telling jurors that if they choose a life sentence instead of the death penalty, the defendant will not be released on parole for at least 40 years.

Lawyers for a Texas death row inmate had argued that it was unconstitutional to withhold truthful information that could allay a jury's fears that a dangerous murderer, if not put to death, would soon be out on the street. Texas juries in capital cases are required to assess the defendant's "future dangerousness" but at the same time are instructed that "you are not to consider or discuss" how long the defendant would actually serve if sentenced to life in prison.

This system "unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose," Justice John Paul Stevens wrote in response to the Court's unsigned, one-line order denying review in the case.

In addition, Justice Stevens said, the Texas law was in "obvious tension" with a Supreme Court decision in a case from South Carolina in 1994 that held that when a state puts the dangerousness of a capital murder defendant at issue, it cannot conceal from the jury the existence of an alternative sentence of life without parole.

Unlike South Carolina, Texas does not give the no-parole option. So the case raised the question of whether the due process principle established in the 1994 case, Simmons v. South Carolina, extended to life sentences in which parole is a possibility.

In a footnote to his statement today, Justice Stevens said there was data on public attitudes toward the death penalty indicating that the difference between a sentence of life without parole and a life sentence with long-delayed parole was one of degree, not kind. He said that public support for the death penalty dropped notably in states that offered a guarantee of long incarceration as an alternative.

Three other Justices, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, signed the statement, which Justice Stevens characterized not as a dissent from the denial of review but as an "opinion respecting the denial."

What made this statement unusual was that it takes the votes of only four of the nine Justices to grant review of a case. So these four had the ability to add this case to the docket for argument and decision. That they chose not to do so may reflect their concern that the other five Justices, if put to the test, would vote to uphold the Texas law and, in doing so, convert a single state court's decision into a national rule of law.

As an alternative, the four Justices evidently decided to call attention to the issue, in the expectation that other state courts would soon be dealing with it and in doing so might create a more favorable climate for Supreme

Court action. The New Mexico Supreme Court has already ruled that jurors must be informed of how parole would operate under a life sentence for a convicted murderer.

The case today, Brown v. Texas, No. 96-9187, was an appeal from the Texas Court of Criminal Appeals. The inmate, Arthur Brown Jr., was convicted in 1993 of shooting four people to death in a drug dispute. Mr. Brown is now free to raise the same issue through a petition for a writ of habeas corpus in the Federal courts. But that route is unlikely to be successful because the United States Court of Appeals for the Fifth Circuit, which includes Texas, has already rejected the argument in an unrelated case.

These were among the other developments at the Court today:

Drug Sentencing

The Court agreed to decide what sentencing rules should apply to people found guilty of narcotics conspiracies involving more than one illegal drug, typically both powdered cocaine and crack cocaine, which carries much higher penalties under Federal sentencing guidelines.

The lower Federal courts are split over how to proceed in the many such cases in which the jury has returned only a general verdict of guilty, without sorting out which drugs are involved in which part of the conspiracy. In this case, Edwards v. U.S., No. 96-8732, five codefendants from Rockford, Ill., who were found guilty of a conspiracy involving powdered cocaine and crack are arguing that when the jury has not specified otherwise, the sentence must be based on the drug that carries the lower penalty. The United States Court of Appeals for the Seventh Circuit, in Chicago, rejected the argument; two of the five received sentences of life in prison.

Miners' Benefits

The Justices agreed to hear a constitutional challenge to a 1992 Federal law that requires companies that leave the coal mining business to pay lifetime medical benefits to retired miners who were eligible to receive benefits at the time the law took effect. The Coal Industry Retiree Health Benefit Act applies to companies and their corporate successors that had signed labor agreements as long ago as 1950. If the company a miner last worked for is no longer in business, the law gives the Commissioner of Social Security broad authority to assign the obligation to another company.

The law was challenged by a Massachusetts company, Eastern Enterprises, that was ordered to pay benefits to 1,000 miners who had worked for it before 1966. The United States Court of Appeals for the First Circuit, in Boston, rejected the arguments that the law violated the company's right to due process and amounted to a taking of private property without compensation. The case is Eastern Enterprises v. Appel, No. 97-42.