On Political Books

March/ April/ May 2014 Abolition and Backlash

Efforts to ban capital punishment are growing. But keep this in mind: the last time the Supreme Court tried to end the death penalty, we got more executions.

By David Dagan


A Wild Justice: The Death and Resurrection of Capital Punishment in America
by Evan J. Mandery
W. W. Norton & Co., 544 pp.

Not too long ago it was difficult to find a politician in America who would publicly oppose capital punishment. Today, abolition is ascendant. Six states have scrubbed the death penalty from their books in the last decade—most recently Maryland, where governor and presidential aspirant Martin O’Malley signed repeal legislation last year.

The Maryland repeal was a victory for the Baltimore-based NAACP, which had lobbied hard for the measure. The civil rights organization is also promoting abolition in other states, and it has declared an audacious endgame. Once twenty-six states outlaw executions, the NAACP says, it will ask the U.S. Supreme Court to invalidate the death penalty nationwide by declaring it a “cruel and unusual punishment” under the Eighth Amendment.

This may seem a quixotic quest, but both the NAACP and the Supreme Court have done it before. The justices shocked the nation by declaring executions “cruel and unusual” in the 1972 case of Furman v. Georgia. The decision was the product of a decade-long litigation campaign led by the Legal Defense Fund (LDF), a public interest law firm affiliated with the NAACP. At the time, Furman was widely interpreted as the end of capital punishment in America.

But the abolitionist triumph was short-lived. Furman became an outlet for all the anger the Supreme Court had prompted with its decisions on civil rights, criminal cases, and—soon after—abortion. Riding the wave of outrage, state politicians rewrote their death penalty statutes and dared the Court to invalidate them again. In 1976, in Gregg v. Georgia, the justices gave the green light for executions to resume, setting off a new spree of state killing in America.

How did the justices reach their unexpected and radical decision in Furman? And, having crossed the Rubicon, why did they reverse course four years later? Evan J. Mandery, a former capital defense attorney and a professor at New York’s John Jay College of Criminal Justice, answers these questions in his new book, A Wild Justice: The Death and Resurrection of Capital Punishment in America. As Mandery vividly shows, litigating the death penalty is like riding a bull. You can’t tame it—so just hang on tight and prepare to be thrown.

Mandery draws his title from a quote by Francis Bacon, who declared in 1625, “Revenge is a kind of wild justice; which the more man’s nature runs to, the more ought law to weed it out.” The difficulty of this weeding-out is the central drama of the story. Many government decisions have profound moral dimensions, but they are seldom as stark as with the death penalty. As Justice Potter Stewart wrote in Furman, “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.”

There was another problem with capital punishment that the Supreme Court was loath to acknowledge but unable to ignore: racism. In the South, where the death penalty has always been strongest, it is the historic and symbolic heir to the lynch mob. That’s why the LDF, which made its name in cases such as Brown v. Board of Education and Smith v. Allwright, had always found itself compelled to represent black defendants in capital cases.

Before 1963, the LDF fielded such cases individually, with no intention of ending the death penalty altogether. But that year, Justice Arthur Goldberg, a John F. Kennedy appointee, set in motion the chain of events that nine years later would lead to Furman. Goldberg published an opinion arguing that the Supreme Court should consider the constitutionality of the death penalty for crimes less than murder—an incredible breach of protocol, given that no litigant had brought the issue up. The justice’s brilliant young clerk, Alan Dershowitz, had drafted the opinion to focus on the racism of the death penalty system. But Goldberg’s colleagues prevailed upon the justice to remove all references to race.

Still, the LDF took note, and it soon launched a litigation campaign to challenge the constitutionality of the death penalty. True to Goldberg’s concerns, the organization initially focused on racial disparities in sentencing. But in the years it took the LDF to mount an elaborate statistical study and walk it through the lower courts, its mission morphed. The lawyers decided that it was impossible to represent only black capital defendants when they had the expertise to do the same for whites.

As its client list grew, the LDF’s legendary executive director Anthony Amsterdam hit upon a new idea: the organization would launch a rearguard action in the lower courts, with the goal of blocking all executions until the Supreme Court had settled the matter once and for all. The idea was to create a situation in which approving the death penalty would be tantamount to unleashing a bloodbath.

It would be the justices, however, who would choose the terms of a showdown. Over the years, the LDF and other lawyers supplied the Court with numerous abolitionist arguments to weigh. The one it never chose to tackle was race. The justices flatly refused to review a lower court decision dismissing the LDF’s statistical evidence. Mandery does not reveal why, but chances are that the justices’ political antennae were better than the LDF’s: going to bat for convicted rapists and murderers in the name of racial justice was, at this stage, likely to pollute both causes.

Instead, the litigation that culminated in Furman revolved around a different question: whether death penalty cases demanded special procedures above and beyond the protections afforded to ordinary defendants. In 1968, for example, the Court ruled that jurors opposed to capital punishment could not be screened out of death penalty cases, on the grounds that people disposed to hanging were generally more likely to convict a defendant in the first place.

However, the biggest debate was about how and when jurors should pick a death sentence. Under the prevailing system, conviction and sentencing decisions happened at once, with no opportunity for a guilty defendant to separately plead for his life. What’s more, the jurors who made these decisions had boundless discretion—they were given no guidance as to who should live and who should die. The result, the LDF argued, was that death sentencing was arbitrary, more lottery than law.

The Court wrestled with these questions for years without issuing a decision, rehearing a single case multiple times, arguing viciously, finding itself tripped up by departures and arrivals of justices. Finally, in 1971, the Court decided in a pair of cases that neither split trials nor jury standards were required. The LDF campaign appeared doomed.

David Dagan is a freelance journalist and a PhD student in political science at Johns Hopkins University. Find him on Twitter: @DavidDagan

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