Book Review: A Wild Justice, by Evan Mandery, W.W. Norton & Company (NY 2013), 534 pp.
“A Wild Justice” by Evan Mandery chronicles the rise and fall of the anti-death penalty litigation campaign which culminated in the abolishment of capital punishment by the Supreme Court in 1972. It was reinstated just four years later in 1976. The book, which covers these four years, recounts the heroic efforts of the NAACP’s Legal Defense Fund (LDF), which led the campaign, it goes inside the Supreme Court conference rooms to detail the thought process of the Nine as they debated the pros and cons of the death penalty, it pauses to provide brief biographical sketches of the Justices, and it recreates the best moments of oral argument and written opinion elucidating the heart of the issue. The book serves as an excellent overview to the tortured history of death penalty jurisprudence.
I find some faults with this book, which I’ll mention. Its greatest strength, however, is its appraisal of LDF’s strategy decisions. Because this blog focuses on radical lawyering, I want to recap some of LDF’s substantive arguments against the death penalty. It’s the only way to really capture the genius of these abolitionists. It may also be worth recreating for a generation of activists who may not be aware of this particular history. What follows is our longish post.
LDF’s strategy began in the late 1960s when the group attempted to “pour sand into the gears” of the system by bringing all executions to a halt through numerous, simultaneous appeals. LDF succeeded at creating a de facto moratorium and with over 600 executions on hold, the Supreme Court knew that if it reaffirmed the death penalty there would be an ensuing blood bath. The stage was set for a monumental case.
That case was Furman v. Georgia in 1972. At issue was whether the death penalty amounted to “cruel and unusual punishment,” which was forbidden by the Eighth Amendment. The argument of LDF, and its brightest star Tony Amsterdam (another major focus of the book), was that, in line with an earlier Supreme Court decision, cruel and unusual punishment had to be gauged in terms of “evolving standards of decency that mark the progress of a maturing society.” Capital punishment supporters, on the other hand, urged that cruel and unusual punishment was defined according to the original intent of the Constitution’s authors. Amsterdam addressed this proposition: “If the Constitution does not forbid capital punishment today upon the theory that it was widely allowed by law and practice in 1791, the Eighth Amendment also does not forbid today – and will never forbid – the stocks and the pillory, public flogging, lashing and whipping on the bare body, branding of cheeks and forehead with a hot iron, and the stilting, cropping, nailing and cutting off of ears. Further discussion of a static theory of the Eighth Amendment seems unnecessary.”
How then could one conclude that the death penalty was out of line with “evolving standards of decency” in 1972 given that most states allowed it? Tony Amsterdam’s genius was to argue that the public supported the threat of capital punishment but not its imposition. The death penalty was rarely enforced, it was applied to the ugliest defendants, and it was hidden from public view. Widespread executions would cause revulsion, Amsterdam argued. He did not discard the fact that forty-one states had it on their statutes. “But one must ask, ‘What do they do with it?’” Amsterdam pointed out that at every step of the way prosecutors exercised discretion and juries chose not to impose the death penalty, even when they had a death eligible defendant. “We hide our executions because we are disgusted to look at them, because the view of them would make men sick,” Amsterdam wrote. “Could the Court today sustain a public execution as consistent with the Eighth Amendment?” In other words, the rare application of the death penalty “objectively” showed that it was out of line with evolving standards of decency.
Moreover, according to Amsterdam the judiciary had to step in. Judges are always reluctant to rewrite the law. But the judiciary could not take a wait-and-see approach. The death penalty had to be gauged according to contemporary societal mores. It was not sufficient to gauge “evolving standards of decency” by asking whether States let a certain punishment fall out of fashion. Under that approach, the Eighth Amendment would be a dead letter; it would cease to be a constitutional protection for individuals presently facing punishment. Additionally, because the death penalty was inflicted against people who are overwhelmingly poor, minorities and socially ugly, “it escapes all other constitutional controls and escapes the public pressures to keep legislatures acting decently,” said Amsterdam. Absent a judicial role, the Eighth Amendment was essentially meaningless.
LDF carried the day and in 1972 the Supreme Court abolished capital punishment. What resulted with Furman v. Georgia, however, was a 5-4 majority in favor of overturning the death penalty and five different rationales for doing so. Mandery captures the high points of the majority decisions. Justice William Brennan focused on the issue of human dignity:
Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose ‘the right to have rights.’ A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable . . . . As one 19th century proponent of punishing criminals by death declared, ‘When a man is hung, there is an end of our relations with him. His execution is a way of saying, ‘You are not fit for this world, take your chance elsewhere.’
Justice Douglas focused almost exclusively on the discriminatory application of the death penalty and asserted that America had created a caste system. Justice Thurgood Marshall emphasized the illegitimacy of retribution as a sentencing purpose. Despite these powerful statements, the fact that there was no one unifying opinion set the stage for Furman’s eventual undoing.
One of the strongest and most cogent sections of the book is Mandery’s attempt to deal with the backlash that followed Furman. That backlash was driven by the court’s loss of legitimacy in the wake of forced busing and Roe v. Wade. It was augmented by President Nixon’s “Southern Strategy” which split economically liberal southerners from the Democratic party through appeals to social fears such as rising crime and integration. This was the era of urban riots and a nationally accelerating murder rate. In Furman’s wake, every state that previously retained the death penalty wrote new statutes which they believed would be upheld in face of the now inevitable Supreme Court reversal.
The state responses should appear familiar because they form the basis for every death statute now in existence. The States correctly predicted that the general proposition that death can never be a punishment would not stand up over time and so they focused their efforts on those decisions which criticized the death penalty as inconsistently enforced and unfairly applied. One response was to make a death sentence mandatory for certain crimes. (These laws were later struck down). The enduring response focused on making the process more fair. This involved bifurcated trials, with a guilt phase and a punishment phase, and the utilization of written standards for juries who were instructed to weigh certain factors in determining death.
By this point the ground had shifted beneath LDF but, according to Mandery, LDF lost sight of reality. By the time the next landmark death cases were heard again in 1976, known collectively as Gregg v. Georgia, the death penalty had proven to be a widely popular institution. Support for capital punishment surged in the wake of Furman. In just four years prosecutors and juries had sentenced 253 people to die – though these sentences were presumably on hold. This historical development calls into question the ability of lawyers to make social change through strategic litigation. Mandery suggests that no real gains can be had if the Court outpaces public opinion. He calls this part of the book “Hollow Hope.”
In this context LDF could have focused on the flaws of the particular statutes under examination by the Court in 1976. For example, in a prior case Justice Harlan had questioned the ability of legislators to write a balance sheet for juries to weigh mitigating factors (such as the mental incapacity of the defendant) against aggravating factors (such as the helplessness of the victim) in meting out death sentences. According to Justice Harlan, mercy was an act of grace that couldn’t be codified. Nonetheless, LDF refused to get in the game of tinkering with the machinery of death. LDF argued that death could never be a punishment in any circumstance. At one point Justice Powell asked Amsterdam, who is Jewish, whether the death penalty was appropriate “for the commandant of Buchenwald.” When a flustered and offended Amsterdam answered “no,” Justice Powell stared in disbelief.
LDF was also in a bind over its arguments concerning selective enforcement of the death penalty. LDF argued that prosecutorial discretion and jury discretion did not provide safeguards. Instead it resulted in the discriminatory application of death sentences to the weakest defendants. But if the problem was that the death penalty targeted the poor and minorities because of prosecutor and jury bias, then the same could be said in every other criminal case. If this type of discretion did not result in a fair process in a capital case then it produced unfair results in a run of the mill drug case or armed robbery. The Justices were not prepared to grapple with this possibility. The result of Gregg v. Georgia in 1976 was 7-2 in favor of reinstating capital punishment.
BAD EDITING, BUT A GOOD READ
This book’s greatest downfall is that it should probably have trimmed at least 100 pages from its almost 500 page total (kind of like this review). Mandery doesn’t really hit his stride until about a quarter of the way in when he begins to really focus more on the substantive legal issues and recreates the now legendary oral arguments. Prior to that, the reader gets an institutional history of LDF, including what kind of office chairs they used, and stilted attempts at setting the scene by walking us through what a certain Justices had for breakfast, his early morning stroll and then scenic drive to the Court prior to deciding an important matter. And there are a lot of brief detours to explain the background of a particular academic or intellectual who only shows up for a few pages and is quickly forgotten. On the other hand, faulting a book about the Supreme Court for being slow is kind of like watching golf on T.V. and complaining about the lack of action. The real problem is the editors who didn’t bother to cut non-essential material or correct the littering of spelling and grammatical errors.
It is also too bad that the book ends on such a depressing note. It even concludes with an “all that could have been” type of prologue positing a series of what-if questions. Perhaps the crusaders involved in this struggle look back in frustration. The present generation of abolitionists, however, can see this history as having laid the groundwork. To that end, this conclusion ignores the resurrection of the abolitionist movement, the fact that support for the death penalty has dropped over the past decade and that 9 more states have since abolished the death penalty (thirty-two states have it, eighteen do not). Overall, it’s a good read and a great resource.