There's a fascinating story on the front page of The New York Times this morning about two men who led the right for toughening the death penalty in California back in 1978 -- and now regret it. It's been an up-and-down past few months in America on this issue, ranging from the debate over the execution of Troy Davis to other state murders halted or death row prisoners released due to questions about evidence and guilt.
With polls showing that roughly six in ten Americans still support capital punishment in the United States (even with that number declining somewhat) it’s hard to make the case that the practice will be abolished any time soon. But I’ve argued otherwise, pointing to support dropping to under 50 percent when life without parole is listed as an option, and the continuing fall in the number of executions in America.
Still, most in the media find the end of executions in the United States a farfetched dream. I’d guess that most probably are not even aware that the death penalty was once banned in America—and not so long ago. And it happened rather suddenly and unexpectedly. I write about it in my current e-book, Dead Reckoning, on the history of capital punsihment in America up to the present day, but here is a summary.
There was no one event or factor that caused it. Yes, there were several notable cases in the 1950s that sparked protest, including the Rosenbergs and Caryl Chessman (left). In 1959, Susan Hayward won an Academy Award for her portrayal of a condemned murderess in I Want to Live, based on the true story of Barbara Graham. The film concluded with a graphic and troubling depiction of the woman’s execution in the San Quentin gas chamber.
Pope Pius XII offered only a timid plea for “charity” in the Chessman case, but even that was breakthrough for Catholics, a “tentative step on the road to recovering the pastoral practice of St. Augustine, disapproving all executions, and especially those based on political motives,” James Mcgivern wrote in his book on this subject. Chessman’s pleas for a new trial inspired the first mainstream churches, such as the Methodists, to join the so-called “peace” churches in taking a stand against capital punishment.
By the end of the 1960s, the Methodists were joined in the abolitionist camp by the American Baptists, the Union of American Hebrew Congregations, the Lutheran Church, the National Council of Churches (but not the Catholic Church). Hawaii and Alaska entered the union abolitionist. Oregon and Iowa, which had gone abolitionist once before—only to reinstate the death penalty—now banned executions once again. Delaware outlawed executions in 1958, but then, following outrage over a brutal murder in the state, reinstituted it in 1961.
More nations abolished executions. In 1955, Arthur Koestler had observed that Great Britain “is that peculiar country in Europe where people drive on the left side of the road, measure inches in yards, and hang people by the neck until dead,” a practice he likened to “a slightly off-color family joke.” Ten years later, England suspended the practice as an experiment; for years later it decided to make the ban permanent.
In America, the average number of annual executions had stood at about 120 during the 1940s, but now declined to about seventy per year during the 1950s, and then to twenty-one in 1963, seven in 1965, and two in 1967—the last executions for more than a decade. (Dead Reckoning traces the death penalty in America right up to the Troy Davis case.)
There were several reasons for this. New studies seemed to suggest that the deterrence theory was hogwash; in fact, in some states, the murder rate appeared to rise after a wave of executions. A new generation of anti–death penalty lawyers, led by the NAACP Legal Defense and Education Fund, adopted a strategy of contesting nearly every capital conviction, up the appeals process, logjamming the death penalty machinery, hoping this might lead to a permanent shutdown.
A kind of moratorium on state killings was established while numerous legal issues, often centering on the Eighth Amendment, were decided in the courts. Since the 1950s, under the influence of the Warren Court, the notion of equality before the law had held sway, and few could deny that the death penalty had been exacted on the poor and minorities to a degree demographically far out of proportion. In addition, the trend in criminal justice was toward rehabilitation of inmates.
For the first time, surveys showed that a majority of Americans, influenced by all of the above trends, and a general period of economic well-being and social stability, opposed the death penalty. One survey tracked the drop in support for the death penalty from 68 percent in 1953 to 51 percent in 1960 to 45 percent in ’65. So, much like today, prosecutors were hesitant to seek it and juries reluctant to grant it.
Matters came to a head in 1972 when Furman v. Georgia came before the Supreme Court, and the justices were, essentially, asked to rule on the validity of the death penalty in light of the Eighth Amendment. The justices split into three factions. Marshall and Brennan felt that it indeed amounted to cruel and unusual punishment per se. Each cited evolving moral standards as one reason for their beliefs. Brennan, in addition, argued that capital punishment was degrading and humiliating and “does not comport with” the fundamental right to “human dignity.” Marshall stated that it was, in any case, “excessive” because it was either unnecessary (serving no purpose at all) or could be replaced with a lesser penalty that would do just as much “good.”
Four other justices, however, ruled that capital punishment was clearly mandated by the Constitution, although at least two of the justices indicated that they personally abhorred the death penalty. That left a swing group of three, who took no position on the absolute validity of capital punishment, but ruled that it had been applied unevenly, arbitrarily and capriciously, due to wide discretion on the part of judges and jurors, and especially since the number of executions had declined—and especially in regard to defendants who were poor or black. Justice Potter Stewart wrote that death sentences in the United States “are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Justice Byron White added 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 5-4 ruling, then, was a compromise. The Furman decision threw out all current state and federal laws prescribing capital punishment and halted all pending cases but did not ban future executions, if the system could be made less capricious. Most states, rather than letting capital punishment fade to the vanishing point, set out to reform their laws to meet Supreme Court approval, so the killings could commence again. They might not have got very far, except that public opinion had shifted again. The crime rate was soaring, and fear of crime—as well as the lingering social upheaval of the 1960s—had sent support for death penalty spiraling upward again in opinion polls: to 66 percent by 1976. This was part of a general call for the courts to “get tougher” on criminals of all kinds.
And so, once again reflecting, and perhaps even responding, to the shifts in opinion, the Supreme Court in its Gregg v. Georgia decision in 1976, ruled that executions could return, as states made their capital procedures less arbitrary. Only Marshall and Brennan, the two abolitionists, held out.
In his lead opinion, Justice Potter Stewart cited a controversial study by Isaac Ehrlich (since largely discredited) which purported to show that capital punishment did have deterrent value. “We have been told,” Hugo Bedau, a leading authority on the death penalty, observed, “that the justices of the Supreme Court, like the rest of us, read the headlines; but it is rare for the Court to trot them out so blatantly as it did here…. Only a little imagination is required to guess what a comparably cautious, not to say timid, Court would have ruled twenty years earlier in Brown v. Board of Education.”
Greg Mitchell's new e-book is Dead Reckoning: Executions in America (Sinclair Books). Earlier he wrote another book on the subject with Robert Jay Lifton, Who Owns Death? His most recent book, with Kevin Gosztola, is Truth and Consquences: The U.S. vs. Bradley Manning.