A Wild Justice: The Death and Resurrection of Capital Punishment in America by Evan Mandery

Certiorari was granted limited to the following question: Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth Amendment?  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth Amendment.  --Chief Justice Burger, reading the per curiam opinion of the court in Furman v. Georgia, 408 U.S. 238 (1972).

We consider at the outset the basic contention that the punishment of death for the crime of murder is under all circumstances cruel and unusual in violation of the Constitution.  We reject that contention. --Justice Stewart, announcing the opinion in Gregg v. Georgia, 428 U.S. 153 (1976).

Since the foundation of the United States (and before), the government in this country has executed those accused of heinous crimes.  Because of this long-standing history, in the 1960s, everyone presumed the constitutionality of the death penalty..

This changed.  And then, it changed again.

Mandery takes the reader through the cultural shifts that lead to the end of the death penalty; he also takes the reader through the cultural shifts that brought it back.



This image was include in the NYT
review of the book, it was too
awesome for me not to include.

Pre-abolition: although the death penalty was presumed constitutional, it was also on its way out.  States were executing fewer and fewer people; other states were abolishing the death penalty altogether.  Why, then, should anyone interfere with the death penalty?  Mandery answers that Justice Goldberg was looking to make his mark on the liberal Warren court.  He included some language in an opinion indicating that in some circumstances the death penalty would be unconstitutional, (correctly) expecting civil rights lawyers to take the hint.

They did.  The Legal Defense Fund (associated with the NAACP) took up the cause (because the NAACP was concerned about the disproportionate number of African Americans being executed).  The litigation strategy was to show that society's standards for cruelty had evolved to the point that the death penalty was no longer moral.



Abolition: Mandery presents a compelling view of what was happening in the Justices' chambers.  He presents the Furman opinion as a compromise between the hard-abolitionists (who believed in complete abolition) and the soft-abolitionists (who believed, merely in abolishing the states' practices at the time).  This compromise would ultimately be defining because of what happened after Furman.

Public reaction to the decision was immediate and unequivocal: large segments of the population felt that the decision went too far with the Court's liberal agenda.  States immediately started re-drafting their statutes to conform to Furman and bring back the death penalty.  LDF began litigating against these new statutes.

To no avail: the Supreme Court brought the death penalty back.  Why?  The Court's members had changed.  More fundamentally, though, the Court was not ready for the backlash against Furman.  And, unlike the right to privacy decisions, the opinion was weak because it was only supported by a slim majority.  However, even the decisions upholding the death penalty were compromises.  So, instead of upholding all states' death statutes, the Court struck some down. 

Post-abolition: lawyers are left with the task of sorting through the decisions and trying to make them work.  They are a mess.  Importantly, Mandery describes how a number of the Justices involved in the decisions bring the death penalty back later regretted their decisions.  Notable is Justice Blackmun who eventually wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.  Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

A few notes of particular interest:

I guess this is what the machinery of
death looks like.

(1)  Mandery's presentation makes it seem as though, left alone, the death penalty would have abolished itself over time.  Instead, the Supreme Court's interference invigorated a pro-death movement (a very similar criticism is often directed toward Roe v. Wade).  If true, this poses an interesting problem for an attorney who is against the death penalty: should he argue against the death penalty to save his client or do nothing for his client and wait for society to fix itself?  Of course, for a lawyer this question is easy because the ethics rule require zealous representation of the client...not social movements.  Nonetheless, from a moral standpoint, one wonders.

(2)  Mandery also presents an ethical issue confronted by LDF's main anti-death litigator, Tony Amsterdam.  Amsterdam was vehement that they argue against the death penalty in all cases; this position required him to abandon grading the different states and identifying some as being worse than others.  As a result, during the oral arguments about bringing the death penalty back, he did not provide any assistance to the Justices in determining which statutes were worse than others.  I can't help wondering if death penalty jurisprudence would be less messy if Amsterdam had taken a position on the comparative worth of states' statutes.

A good book for anyone interested in the death penalty or the Supreme Court.  It's a must-read for anyone interested in both.