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.

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.

But as a rule, governments do not abolish the death penalty because doing so is popular. In the other industrialized democracies, abolition was an elite project, a decision political leaders closed ranks around and imposed on their citizens. Elite abolition is much harder in the United States, where justice is locally controlled, crime is an easy target for populists, and lethal violence is more widespread.

The LDF’s advocates struggled heroically to achieve a razor-thin victory that soon blew up in their faces. To succeed this time around, abolitionists will have to dig in for a battle that will be even longer and harder.

Buy this book from Amazon and support Washington Monthly: A Wild Justice: The Death and Resurrection of Capital Punishment in America

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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