But as Chief Justice Warren Burger acknowledged in his Furman dissent, geography does matter: "There are doubtless prisoners on death row who would not be there had they been tried before a different jury or in a different State. In this sense, their fate has been controlled by a fortuitous circumstance." Burger was using fortuitous by its first definition, "happening by chance"--the kind of execution the US Supreme Court was supposedly trying to get away from.

But the Court showed no sympathy for Spenkelink's "fortuitous circumstance" of being tried in Tallahassee, Florida's capital, an ingrown small town near the border of Alabama and Georgia whose recent history had been marred by acts of racial intolerance. It was a place where--as Justice Richard Ervin of the Florida Supreme Court noted in his passionate argument against the execution--names like Spenkelink and Szymankiewicz sound "foreign and strange," and where, because the condemned prisoner had no family roots or business connections, "all the ingredients were present for the exercise of invidious parochial discrimination.... The result here is an old story, often repeated in this jurisdiction where the subconscious prejudices and local mores outweigh humane, civilized understanding when certain segments of the population are up for sentencing for murder."

In short, Justice Ervin was saying in a nice way that Spenkelink had been judged at his trial as the equivalent of a white nigger (a word still current in north Florida in those days).

Indeed, many believed it was his whiteness that probably doomed him to be the first to die. On the same day that Governor Bob Graham signed Spenkelink's warrant, he also signed one for Willie Jasper Darden, who, one might fairly argue, had committed a much more heinous crime than Spenkelink. A career criminal, Darden had shot a furniture owner and while he lay dying tried to force the man's wife into a sex act. When a 16-year-old boy saw the murdered man lying in the doorway and rushed up to help, Darden shot him in the mouth, throat and back.

But Darden was black, and Florida was especially sensitive on this point. Under the old death penalty it had executed twice as many blacks as whites, and twice as many blacks as whites were waiting on its death row to be executed when Furman had given everyone a reprieve. So Spenkelink drew the short straw. It was racism, but this time in reverse. (Willie Jasper Darden, by the way, would not be executed until 1988.)

The Court Begins to See That It Screwed Up

With Spenkelink's execution, the death-penalty industry started off at the bottom of a pit, and the more it clawed at the sides trying to get out, the more foolish it looked. The Court seemed to realize it had gotten itself mired in something too complex for mortal men and women--even for those who wore black robes and looked solemn--and began showing signs of panic. It had hoped that with the formalized checklist of aggravating and mitigating circumstances, the states could handle this on their own. The last thing the Court wanted to do was micromanage things. But that's what happened.

Sandra Lockett, 21, was the getaway driver for the robbery of an Ohio pawnshop. Murder was not supposed to be in the plan, but one of her accomplices killed the pawnshop owner anyway. She faced the death penalty as an accessory. It was her bad luck that the crime was committed right when the Ohio legislature was writing its death-penalty statute. It had originally said that many things could be considered to mitigate the offense. But after the pawnshop shooting, the legislature cut the mitigating factors to three--none of which applied to Lockett. She was sentenced to die.

Coming to her rescue, the Supreme Court ruled in Lockett v. Ohio (1978) that no state statute could limit the mitigating circumstance and that the jury must be allowed to consider anything the defendant thinks might invite mercy. A humane gesture, yes. But look what it did to the vaunted "specificity" of the mitigation list that was supposed to be the key to avoiding arbitrariness. Look what it did to the supposed cure-all, "guided discretion." Now, mitigation was wide open. If the same thing happened to the aggravation side of the penalty trial, well, what would be left of the Furman reforms? The answer to that came with Barclay v. Florida in 1983.

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