It was the old boy's last big chance to strike a blow for tradition. Shortly thereafter, Harlan retired and died. If he had lived even another year he would have been shocked to see the dazzling speed with which the Supreme Court can change its mind. It happened with Furman v. Georgia. The nine separate opinions totaled 50,000 words, the most voluminous dialogue in Court history. Stanford University law professor Robert Weisberg likened it to "a badly orchestrated opera, with nine characters taking turns to offer their own arias."

The case dealt with appeals from three black men who had been sentenced to death, one for murder, the other two for raping white women. William Furman was the murderer. At trial he gave this description of how he accidentally shot his white victim through a door: "They got me charged with murder and I admit, I admit going to these folks' home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn't intend to kill nobody. I didn't know they was behind the door. The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it." As a matter of fact, the Georgia Supreme Court accepted Furman's explanation, but it nevertheless upheld the death sentence. (Let us pause to point out the obvious: This was, as Furman's attorney said, "a regular garden-variety burglary murder." A white defendant would have got maybe twenty years.)

In Furman, as in McGautha, the Supreme Court was asked if the death sentence was "cruel and unusual." This time, it said yes--but it was a weak yes. Only two of the 5-to-4 majority, William Brennan and Thurgood Marshall, thought capital punishment itself cruel and unusual, but all five of the majority said the way the penalty was applied was unconstitutional.

What galled them was that judges, prosecutors and juries were administering the penalty so randomly, so capriciously, that it was like "being struck by lightning," said Justice Potter Stewart. Justice Byron White--who wanted more, not fewer executions--complained that after being exposed to "hundreds and hundreds of federal and state criminal cases" that could have resulted in the death penalty and seeing only a handful of defendants selected for execution, he considered the system totally irrational and just based on luck. Justice Brennan also emphasized the element of luck: "When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year," even though thousands of murders are committed annually, "it smacks of little more than a lottery system."

The Supreme Court's decision was good news for the 600 or so residents of the nation's death rows, including such notables as Robert Kennedy's assassin, Sirhan Sirhan, whose sentences were invalidated. Some were freed; most were resentenced to life terms, with a chance for parole. (The man who gave his name to the case, William Furman, was paroled in 1984, worked on construction jobs and stayed out of trouble. His voting rights were restored in 1988.)

The records of the 600 show just how capriciously the death program had been operating. Two-thirds of the condemned were on Southern death rows, the most by far in Florida and Texas, with Georgia and Louisiana close behind. All of the eighty-one who had been condemned for rape were in the South, nearly one-third of them in Florida, with Georgia and Louisiana tied for second place. Fifty-five percent of the capital offenders were black, 43 percent white, 1 percent Hispanic. Records also showed that juries had rarely allowed the men's backgrounds to have any mitigating effect on their sentences. True, most had previously committed crimes, but these were usually property crimes. Nearly three-fourths had never been convicted for a violent crime. Only 39 percent had ever before been in an adult prison.

In Furman, the Court was given the best chance it had ever had, and probably the best chance it would ever have in the next hundred years (considering how seldom liberal judges are appointed), to escape from the death-penalty dilemma. Why, oh why, did they stop short? Why did they say merely that the death penalty was unconstitutional because it hadn't been applied fairly? Why not say it was unconstitutional because it could never be applied fairly, and was therefore cruel and unusual?

Instead, the Court sent the state legislators back to the drawing board to try again.

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