A Wild Injustice

Reading Between the Lines
Demystifying a contentious issue.
Demystifying a contentious issue. // Creative Commons

To many modern readers, the death penalty may seem permanent — in more ways than one. Capital punishment is so ingrained in our national cowboy culture that it may be hard to imagine that just over four decades ago the Supreme Court announced that the death penalty, as practiced at the time, was unconstitutional. That epic decision, Furman v. Georgia, and the case overturning it just four years later, Gregg v. Georgia, are chronicled at great length in Evan Mandery’s new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America.” Mandery, a professor at the John Jay College of Criminal Justice, smartly chronicles the legal battles over the death penalty from the mid-1960s to the mid-1970s. Mandery writes his tale with all the storytelling verve of a true crime journalist and all the fairness of a blind naked woman holding a scale.

The story begins with two unlikely heroes: a young Supreme Court justice and a younger law clerk. Justice Arthur Goldberg — now essentially forgotten by history — was brand new, and one day in 1962 he approached his new clerk, Alan Dershowitz (later a supremely influential Harvard law professor), with a daring proposal. Goldberg asked Dershowitz to research the possible justifications for eliminating the sentence of death. At the time, only the most radical academics, and strikingly few in the public at large, openly advocated the end of the death penalty. Nevertheless, Dershowitz got down to work.

Dershowitz and Goldberg’s eventual report focused on the supremely racist elements of the death penalty: At every stage, from arrest to arraignment to conviction to sentencing, defendants of color were more likely to face death than white defendants. Meanwhile, a case in which a rapist was challenging his sentence of death had worked its way to the Justices’ door. The Supreme Court decided not to hear the case, and Goldberg was furious. He was poised to issue a scathing dissent, criticizing the court for its refusal, but Chief Justice Earl Warren convinced him to release a far narrower dissent, merely criticizing the death penalty as excessive for rapists. Warren later regretted his lobbying.

Nevertheless, Dershowitz’s and Goldberg’s report found its way to the offices of the NAACP Legal Defense Fund (LDF), and the civil rights organization launched a full-fledged attack on capital punishment. LDF, the nation’s “top law firm,” contracted the services of Anthony Amsterdam, America’s “top lawyer” (in Mandery’s eyes), who fought passionately against the death penalty for the next decade. As Mandery documents in sometimes painful detail, LDF decided to attack the death penalty in the nation’s highest court, in doing so, attempting to halt every single death sentence in the country.

In 1973, with more than 700 individuals on death row, the Supreme Court announced Furman v. Georgia, a doozy: By a vote of 5-4, the Court created a de facto moratorium on the death penalty. This was a stunning victory for LDF and other death penalty abolitionists, but it was oddly stunted. Chief Justice Warren Burger craftily defied any precedent and directed each of the nine justices to write his own opinion on the case (rather than just the customary single majority and minority opinions). Because of this tactical ploy, no distinct rationale emerged. In order to win the case, LDF had decided to downplay the racial element of their argument and instead focus on the shaky assertion that the nation had an increasing distaste for the punishment of death. The only consistency among the justices in the majority was that the death penalty was unconstitutional because it was inconsistently applied. Yet, as Chief Justice Burger mean-spiritedly suggested in his dissent, one way to more consistently apply it was to apply it more frequently and with less discrimination or sympathy.

In response, states began passing new, harsher death penalty laws in rapid succession. In 1976, the Supreme Court upheld Georgia’s new law in Gregg v. Georgia. This time, Amsterdam’s arguments didn’t work. Robert Bork, later a failed Supreme Court nominee, successfully painted Amsterdam as against the death penalty under all circumstances, and the justices appeared to dismiss such an extremist.

The central tension of the 1976 case came down to a question of discrimination. It was nearly indisputable that the death penalty was racist, but many, including Bork and the justices, pointed out that so many facets of the criminal justice system were racist (i.e., who is arrested, who is charged, who is convicted) that by this logic, the entire system would have to be dismantled. Amsterdam replied that death, as opposed to any other form of punishment, was simply different — “irremediable,” as he powerfully put it. The justices didn’t buy it.

Since 1976, more than 1,300 people have been executed.

Sadly, Mandery’s book does not continue past 1976. The death penalty has admittedly been whittled down since then — rapists, the mentally retarded and minors can no longer be executed. Yet the U.S. remains virtually alone in its maintenance of capital punishment, and the public still supports it. Mandery’s book is somewhat limited in its narrow temporal scope. Nonetheless, at 534 pages, and with some admittedly tedious chapters — such as the one on the conflicting statistics regarding whether the death penalty serves as a deterrent (inconclusive) — the book may be long enough. It will surely remain the definitive account of death penalty litigation of the 1960s and 1970s.

Following Mandery’s conclusion, he includes an epilogue exploring what could have been. With tragic thoroughness, Mandery demonstrates how different so many things could have been: So many justices later changed their minds and repudiated the “machinery of death” — perhaps they could have done so earlier; a different, less national strategy could have served LDF better; an earlier case could have been heard by a more liberal court. Mandery’s opposition to the death penalty leaks out, yet he remains fair. Regardless of your opinion, “A Wild Justice” is a pulse-quickening and heartbreaking read.

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