And Then There Were None

Oh, sure.  The Supremes said (in a package of opinions that runs 193 pages) that the Affordable Care Act isn't unconstitutional in a grudging few pages by Chief Justice John Roberts.  Along with those pages, he wrote a screed explaining why the Commerce Clause has no teeth and shouldn't ever be used for any purpose except maybe regulating interstate tarrifs.  Maybe. That part of his opinion was echoed by the four dissenters, making a clear 5-4 majority for mostly writing the Commerce Clause out of the Constitution.  And the Necessary and Proper Clause, too, as long as they were at it.

But really, that's so yesterday.

So come with me to the WABAC machine.

Set date for 40 years ago, June 29, 1972.

That's when the ones in robes took 233 pages to explain, by a vote of 5-4 with each of the 9 writing separately following a one paragraph order, that every death penalty law in the nation was unconstitutional.

The case was Furman v. Georgia, and it emptied death row.

Because, said William O. Douglas,

[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.

Because, said Thurgood Marshall,

It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape.

Because, said William J. Brennan,

Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.

Because, said Byron White,

[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries—a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence—has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.

Because, most famously said Potter Stewart (footnotes deleted),

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously 310selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

There hadn't actually been an execution in this country since 1967, but there were 589 people (587 men and 2 women) on death row. And then, suddenly, there were none. Zero.

The Class of '72 walked off the row, into general population.  In time, not at once, not soon, but in time, many of them walked out of prison.  The worst of the worst, the irredeemable.  And you know what?  The Republic didn't end.

The day did, of course.

The states began rewriting their death penalty laws.  Four years and three days later, on July 2, 1976, now by the vote of 7-2, in Gregg v. Georgia, and again for a variety of reasons though not quite so many, the Supremes said that some of those new laws were constitutional and others were not.

There are, as I write this, roughly 3,170 men and women (mostly men, of course) on death row in this country.  We have, as I write this, executed 1300 men and women since then.  (Number 1300 was Samuel Lopez in Arizona, killed on Wednesday.) We've killed, that is, more than twice as many as were spared when Furman was decided.

But as we kill, so there's another trend.

• Connecticut
• Illinois
• New Jersey
• New Mexico
• New York

Abolition.

Let's lift a glass.

Forty years ago today death row was emptied.

It can happen here.

Again.