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

But later that year, something odd happened: Justice Hugo Black, a self-proclaimed originalist who thought the death penalty was clearly constitutional, opened up another round. Black had chafed at the Court’s constant brooding on capital procedure, which he saw as a back-door effort to abolish the death penalty. He wanted the matter settled once and for all and saw the 1971 cases as a missed opportunity in this regard. They had been decided on the grounds of a Fourteenth Amendment claim, but remained silent on the more fundamental issue: Was the death penalty cruel and unusual punishment under the Eighth Amendment?

Certain of victory, Black persuaded the brethren to take on this ultimate question. It proved to be an epic mistake.

Nobody had been executed in the U.S. since 1968, thanks in part to the LDF’s moratorium strategy. Even so, the math in Furman initially appeared to favor death penalty supporters. Four conservative votes for retaining capital punishment were assured, and even liberals Thurgood Marshall and William Douglas voiced serious doubts about the Eighth Amendment challenge. But changes of heart, aided by brilliant legal argument from the LDF, gradually tipped the balance to the abolitionists.

In the final decision, a 5-4 monster in which each justice wrote separately, Marshall and his colleague John Brennan declared the death penalty cruel and unusual under all circumstances. Douglas wrote that capital punishment in America was fatally compromised by economic and racial discrimination. But in what would become the crucial opinions, Potter Stewart and Byron White focused on the rarity of death sentences. Stewart famously likened execution to being struck by lightning; White argued that so few people were executed each year as to make the death penalty ineffective, and therefore cruel.

The irony was that just a year earlier, both justices had ruled that the likeliest measures to discipline the punishment—split trials and sentencing standards—were not mandated by the Fourteenth Amendment. Now, they seemed to imply that the Eighth Amendment required what the Fourteenth did not: a way to rationalize death sentencing. This held open the possibility that states could restore capital punishment by overhauling procedures.

Mandery argues that Stewart’s opinion would have been stronger had he not compromised to bring White into the majority. Stewart struck the deal in part because he saw himself as hastening the inevitable. It seemed a good gamble at the time: few observers believed that conservatives would actually try to steer through the apparent loophole Stewart and White had created.

But they were wrong. As Mandery explains, conservative populists were thrilled to at last have found a Supreme Court decision they could actually fight back against. State after state passed new statutes that adopted split trials and standards for capital cases, and defendants were soon being sentenced to death again. In 1976, facing a hostile nation brandishing a set of revised laws that claimed to answer the critique of Furman, the Court allowed executions to resume.

Mandery writes about these events like they felt to the people who lived through them—as a thriller. His research is based in part on the incredible archival record of the death penalty cases, filled with snarky memos, threats to write extraordinary dissents, and anguished hand-wringing. Mandery also talked to law clerks and litigators involved in the saga. Armed with this dramatic material, he probes deep into the bumpy lives and brilliant minds of the lawyers and justices and highlights the moral and political logic underlying what seem like arcane legal debates.

What this virtuoso performance does not do, however, is trace just how the drama of 1963 to 1976 got us into the situation we find ourselves in today: clinging to a punishment that remains marred by inequality, too attached to its symbolism to see how it perverts the criminal justice system atop which it is perched.

Justice Harry Blackmun, who voted to uphold the death penalty throughout the 1970s, later famously denounced efforts to rationalize the punishment as fruitless. But as an institution, the Court has clung fast to the idea that better procedures make a better death penalty, despite overwhelming evidence to the contrary. In 1986, for example, the justices agreed that statistical evidence proved race was a strong factor in death sentencing decisions, but refused to see this as a constitutional problem. The Court, it seems clear, did not think it could afford another Furman.

But the system spawned in the wake of Furman churns out more death sentences than it can carry out—indeed, more than the public would countenance being carried out. For the U.S. to clear out its death rows within one year, we would have to carry out eight executions per day. Instead, we spend millions in legal fees to let defendants rot on death row while denying the survivors of their crimes the “closure” they were promised. As the LDF argued decades ago, there remains a gulf “between what public conscience will allow the law to say and what it will allow the law to do.”

Meanwhile, the backlash to Furman had lasting effects on the criminal justice system more broadly. It imprinted a generation of politicians with an outraged, Nixonian brand of law-and-order politics, and it skewed the nation’s sense of proportionality as it embarked on a historic prison-building spree. When death is the ceiling for punishment, mandatory minimum sentences of twenty years don’t seem so bad.

It is likely that the fever pitch of the Furman aftermath could have been avoided had the Court moved more carefully, invalidating executions initially just for the crimes of robbery and rape, for example, before moving on to murder. There were enough opportunities to do so. But as Norman Mailer once put it, “Capital punishment is to the rest of all law as surrealism is to realism. It destroys the logic of the profession.”

The Court’s death penalty jurisprudence was not a diligent effort to follow a coherent strand of reasoning. It was a tug-of-war on quicksand.

The United States is now on a trajectory that looks remarkably similar to that of the 1960s, when governors refused to sign death warrants, states abolished their death penalty statutes, and executions eventually ground to a halt even before the Court banned them in Furman.

The shift is partly environmental. Law-and-order politics have lost much of their poison over the last decade, thanks both to the substantial drop in crime and to Democrats’ success in proving that they were just as “tough” as Republicans.

A stream of exonerations from death row has also given abolitionists a leg up. A turning point came in 2003 when Illinois Governor George Ryan commuted all of the state’s death sentences. His action disrupted the fundamental logic of the post-1976 system: with endless stages of legal review, and the fiction of standards and objectivity, no individual had to feel responsible for pulling the switch.

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


(You may use HTML tags for style)

comments powered by Disqus