II: The Supreme Court's Dismaying Muddle

The primary source of this humongous, ongoing travesty of justice is the US Supreme Court. In the early 1970s, it had its best chance to rid the nation of the death-penalty headache, but it failed then, and it has been making things worse ever since. Many legal scholars would agree with Carol and Jordan Steiker, who wrote in the Harvard Law Review in 1995: "How and why did the Court create a body of law at once so messy and so meaningless?... The Supreme Court's chosen path of constitutional regulation of the death penalty has been a disaster, an enormous regulatory effort with almost no rationalizing effect."

The heyday of capital punishment in the United States was in the 1930s, when executions averaged 167 a year. In the 1940s, the average dropped to 129. The dramatic decline that began in the 1950s (with an average of seventy-two) was largely due to the civil rights movement, which raised hell about the disproportionate use of minority bodies for execution (55 percent of all executions; 90 percent of those for rape). Since most of the nation's executions were in the South, one didn't need a keen legal mind to see that racial bias had something to do with it. Because of the NAACP Legal Defense and Educational Fund's heroic onslaught of lawsuits challenging the constitutionality of the death penalty, the number of executions plummeted to forty-two in 1961 and down, down, finally, to two in 1967. Then a moratorium on executions took place while the states and the lower courts waited for the Supreme Court to decide what should be done next.

Traditionalists' Last Stand

The quiet that followed was broken in 1971 when the Supreme Court heard McGautha v. California. The decision in that case was very strange indeed, considering the 180-degree turnaround the Court would make the very next year, in Furman v. Georgia. The conflict between those two decisions, coming so close together, foretold the chaos to come.

In McGautha, lawyers for two men convicted of murder, one from California, the other from Ohio, argued that their trials were constitutionally intolerable because the juries were left with nothing but their conscience, intelligence and sense of fair play to guide them. They said the juries should have been given standards for measuring the wickedness of the crimes, and for delving into the character, the background and the intent of the defendants to determine if reasons for mercy could be found. Additionally, lawyers for the Ohio defendant complained that their man hadn't got a fair shake because his jury had decided on guilt and punishment at the same time, instead of separating the decisions into two processes, as had been done for the California defendant.

The Supreme Court's 5-to-4 opinion, written by Justice John Harlan, an Eisenhower appointee, came down to this: The traditional system of leaving life-and-death decisions to a jury's unguided discretion was working OK and did not offend the Constitution. Common sense and fair play were enough. People who wanted to write specific "guiding standards" for weighing degrees of guilt and innocence were asking the impossible, because putting such guidance "in language which can be fairly understood and applied" would be a task "beyond present human ability."

Harlan's skepticism was prophetic.

As for the Ohio defendant's other complaint--that he didn't get a fair shake because the guilt phase and the penalty phase of the trial were not separated--that gave Harlan a chance to thumb his nose at those eggheads at the American Law Institute and the National Commission on Reform of Federal Criminal Law who had recommended the separation. Tough luck, said Harlan, for the Constitution "does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology."

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