You Win Some. You Lose Some. You Save Lives. People Die.

Now I know what it's like to hear Jesus Christ.

William J. Brennan, derisively,  to his law clerks on Anthony Amsterdam's oral argument in Gregg and Jurek and Woodson - three of the five cases that the Court decided in 1976 and that led to reinstatement of the death penalty and, since then to 1343 executions.  Quoted in A Wild Justice: The Death and Resurrection of Capital Punishment in America, by Evan J. Mandery.

Uncharacteristically, I'm going to cut to the chase here.  Mandery's book is a terrific piece of history.  He's done a wonderful, easy-for-the-layman-to-understand job of reporting how the various justices of the Supreme Court came to the decisions they did and wrote the opinions they did when they emptied death row in 1972 and when they permitted executions to resume in 1976.  Much (most? nearly all?) of what he reports isn't new.  But it's gathered and accessible.  And he tells a good story.

He also does a remarkably good job of actually parsing the various opinions and explaining where the opinion were and weren't consistent and just what they did and didn't decide.  To capital defense lawyers, this is bread and butter stuff.  But the details matter, and the broad-brush summaries that work their way into general public discourse miss them.  Mandery gets the nuance and sets it out in, mostly, English rather than legal.

A Wild Justice is also, as the quote from Brennan at the top of the page suggests, wonderfully gossipy.  Who are these guys?  Who got along with whom?  Did Whizzer White (who hated being called "Whizzer") really snap a pencil in Lewis Powell's face and tell hiim "to make up his damned mind"? How is it that Potter Stewart changed his position (but not his vote) in Furman because if he wrote what he believed and intended to write in a concurring opinion White would have voted the other way and the outcome would have been different?* 

Mandery is, in the words of the blurb on the book's back flap, a "former capital defense attorney."  He is currently a professor at John Jay College of Criminal Justice.  Those two careers point to the book's strength and its weakness. 

The strength, as I've said, is that he knows his law, can boil it down so a jury can understand it.  And he tells a good story.  Good lawyers do that. 

The weakness is that he's tedious and not particularly convincing when he becomes a social scientist/criminal justice professor and tries to explain why Furman was met with such disdain and especially, why the state's responded by enacting new capital punishment laws.  It's clear that they did, of course.  Just as it's clear that polling data showed that from the moment Furman was decided and capital punishment (temporarily) abolished, popular support for capital punishment increased dramatically.  

The other weakness is more subtle - and maybe more serious.   A Wild Justice is really Anthony

Anthony Amsterdam

Amsterdam's story.  Now, there's no question that Tony Amsterdam is a lion of the capital defense community. Furman and it's temporary emptying of death row pretty clearly wouldn't have happened without him. A brilliant lawyer, he worked the strategy wrote the briefs, argued the cases.  (Some said that his argument before the Supreme Court in Furman was the finest oral argument ever.)  You can make a credible argument that he personally deserves most of the credit for saving close to 700 lives in that case.

He was also, Mandery suggests without ever quite saying it, an intellectual egoist, unwilling or perhaps unable to listen to voices that didn't simply echo his own.  Mandery comes within a hair's breadth of saying that the Supreme Court ended up affirming death penalty laws in Georgia, Florida, and especially Texas because of his bullheaded intransigence.

There's some truth to those arguments.  (I'm speaking here analytically.  I've heard Amsterdam speak, read one of his books and a few of his articles, marveled at his mustache, but I've never met the guy or spoken with him myself and have no independent way to judge the accuracy of Mandery's picture of hia personality or style or ego.)  But those arguments leave out much.

There were other lawyers who worked on capital cases.  There were other lawyers who argued the cases in Mandery focuses on.  His snippets on the stat attorneys general in Gregg and the other 1976 cases are both mean spirited and, well, snippets.  They were in fact major players.  And his descriptions of Robert Bork landing metaphorical punches on Amsterdam - well, I won't dignify that with commentary.

But A Wild Justice is about abolition gained and abolition lost.  And for all its discussion of the Court and how and what its justices and law clerks did and said and thought, Mandery's book is told from the point of view of the abolitionists.  They're who he spoke with.  They're where he focuses his attention when it's not on the court.  

I'm an abolitionist, too, of course.  That's obvious, I expect, to anyone who's read much of this blog.  But Mandery's book suffers some from that lack of evenhandedness.

Suffers some.  But the thing is, it's really good.  The carping is really quibbles.  Furman and Gregg as we refer to the collections of cases that emptied the row (Furman) and allowed for executions to resume (Gregg) are the foundation - shaky though it is - on which all modern death statutes and most capital litigation wobble.  For exploring them, Mandery's book gets top marks.

NB: My thanks to W.W. Norton for providing me with a review copy.


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*I should add that this makes no sense.  White could have voted against existing death penalty laws regardless of how Stewart voted without there being a majority opinion he detested.  But history often makes no sense.

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.