The Blind Leading the Blind

For the states whose lawmakers believed in capital punishment, which was most of them, Furman was an excruciating turn of events. They were left, as Robert Weisberg put it, with "an emotional and confusing ensemble of exhortations...to solve a problem that the Court could barely identify." They were expected to come up with a system that would give at least the symbolic appearance of objectivity and predictability. Fumbling along, three dozen states eventually wrote "reformed" death-penalty statutes. Ironically, most of the new laws did exactly what the defense attorneys in the McGautha case had asked for and which the Court's majority at that time had scorned.

In most states, the new laws called for splitting the capital punishment ritual into two parts. First the jury would decide whether the defendant was guilty. If it judged him guilty, then the jury would reconvene to decide whether he should pay for his crime by being executed or by serving some portion of his life in prison. Most, but not all, of the new statutes required that the death-penalty phase be guided by a checklist of aggravating and mitigating circumstances surrounding the murder: What was the killer's motivation? What was his criminal record? How brutal, how indefensible was the crime? Who were his victims? Did he deserve sympathy because of his age, because of a wretched home life, because he was an addict, because of his mental state at the time of the murder, etc.? The checklist was clearly intended to keep the jury's mind narrowly focused, to keep it from wandering all over the psychic landscape as it allegedly had in the pre-Furman days. On paper these checklists had the refined air of scientific formulas. In fact, they were anything but scientific, and they would, as the result of other Supreme Court rulings, become about as well-ordered as the contents of a typical wastebasket.

Florida, which had more people on death row than any other state when the old law was thrown out, apparently felt naked without one, and it was the first to write a new law, completing it within six months. But other Deep South states were close behind. Some were so eager to start executing murderers again that they began filling up their death rows even before the new statutes had been approved by the Supreme Court. But they didn't have to wait long.

Populism Gone Berserk

In Furman, the majority had said the manner of deciding who would be sentenced to death row was unconstitutional, but they left hanging the question of whether the punishment itself was "cruel and unusual" and hence unconstitutional. In 1976 that was answered when the Court approved the new death penalty statutes in Georgia, Texas and Florida.

The lead opinion in Gregg v. Georgia was written by Justice Stewart. In Furman, he had complained that death was being dealt out with all the randomness of "being struck by lightning." Now, speaking for the Court's majority, he came up with an absolutely bizarre rationalization for concluding that the new statutes would result in judgments as dependable as a light switch. Why would this be? Because they were the voice of the local people--"the community's belief," as expressed by the legislatures. What! He thought the US Supreme Court should bow to the biases of local and state pols in constitutional matters of life and death?

If the Georgia legislature (or the Texas legislature, or any other legislature) said capital punishment was needed, then who was the Court to say it was wrong? The Court, Stewart wrote, had a high regard for "federalism" (i.e., states' rights) and "the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility." These questions should be left to the legislatures to evaluate "in terms of their own local conditions and with a flexibility of approach that is not available to the courts."

This was indeed a strange, stunning surrender, coming as it did from a Supreme Court that over the preceding twenty-two years (beginning with the Brown v. Board of Education ruling in 1954), had been knocking the unholy crap out of "community belief" in segregation in half a dozen major civil rights cases. Like those civil rights cases, of course, most death-penalty cases had emerged from the South.

• « Previous
• 1
• 2
• 3
• 4
• 5
• 6
• 7
• 8
• 9
• 10
• 11
• 12
• 13
• Next »

• Get The Nation at home (and online!) for 75 cents a week!
• If you like this article, consider making a donation to The Nation.