
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, March 28, 1995                   TAG: 9503280049
SECTION: NATL/INTL                    PAGE: A-4   EDITION: METRO 
SOURCE: Associated Press
DATELINE: WASHINGTON                                 LENGTH: Medium

DEATH: CRUEL AND UNUSUAL?

A Supreme Court justice urged judges across the nation Monday to study a sweeping death-penalty issue: Is it cruel and unusual punishment to execute someone who already has spent years on death row?

Justice John Paul Stevens, the high court's oldest member, wrote what amounts to a two-page essay to accompany an order in which the full court turned down the appeal of Texas killer Clarence Allen Lackey, who has been on death row for 17 years.

Hundreds of the some 3,000 people on death rows in this country have been awaiting execution for more than a decade.

Lackey had contended that executing him now, after all his years on death row, would be cruel and unusual punishment.

``Though the importance and novelty of the question presented ... are sufficient to warrant review by this court,'' Stevens said, ``those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.''

Stevens said such a prolonged death-row stay may obliterate the two main considerations supporting capital punishment - its being considered permissible by the Constitution's drafters and the social purposes of retribution and deterrence.

``Such a delay, if it ever occurred, certainly would have been rare in 1789, and thus the practice of the framers would not justify a denial of [Lackey's] claim,'' Stevens said.

He added that it's arguable whether retribution and deterrence ``retains any force'' after such a long time.

Stevens noted that the highest courts of other countries have found such arguments persuasive.

``Often, a denial of [an appeal] on a novel issue will permit the state and federal courts to serve as laboratories in which the issue receives further study before it is addressed by this court,'' Stevens said.

``[Lackey's] claim, with its complexity and its potential for far-reaching consequences, seems an ideal example of one which would benefit from such further study,'' he said.

Stevens, 74, ranks second in seniority behind Chief Justice William Rehnquist.

No other court member joined in his memorandum, but Justice Steven Breyer, the court's newest member, said in writing he agreed with Stevens that ``the issue is an important undecided one.''

The case is Lackey vs. Texas, 94-8262.

by CNB