Fight to the Death

In 1972 an awful backroom compromise kept the Supreme Court from abolishing the death penalty.

Justice Potter Stewart, U.S. Supreme Court, January 28, 1976.
Justice Potter Stewart morally opposed the death penalty, but that wasn’t enough.

Photo courtesy of Robert S. Oakes/Library of Congress

At the end of his gripping new book, A Wild Justice, Evan Mandery shows how tantalizingly close the Supreme Court came to ending the death penalty. The missed opportunities began in the 1960s and recurred over two decades. More than once the court really did come within a hair of banning executions. Instead, since 1976, when the court allowed capital punishment to go back into effect after a brief ban, the states have executed about 1,300 people. If you think that number sounds shockingly high, you should read Mandery’s revelations about the roads almost taken by the court.

The drama started in 1963, when Justice Arthur Goldberg asked his law clerk, Alan Dershowitz, to write a memo laying out why the death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment. At the time, the proposition “seemed fanciful,” as Mandery writes. The states had been putting people to death since the founding. But Goldberg was an early believer in the Constitution as an evolving document.

Dershowitz’s memo pointed out a pattern of unequal application of the death penalty on the basis of race. Black defendants and white victims: That is the combination that disproportionately ends in a death sentence. Still. When Dershowitz made his finding, the Warren court was in its liberal heyday. But when Goldberg circulated his memo among the other justices, Chief Justice Earl Warren asked him not to publish it. He thought the death penalty was clearly constitutional because the framers so intended it. In the end Goldberg wrote only a brief dissent arguing that death was an excessive punishment for rape. The Warren court never considered the central question about cruel and unusual punishment.

Instead, the case that is the centerpiece of Mandery’s well-told history, Furman v. Georgia, came before the court a decade later, in 1972, when the death penalty was still legal in most states. By then Nixon appointees had begun to stock the court, with Warren Burger as chief. Furman was actually one of four cases, two rapes and two murders, chosen by the court to review the constitutionality of the death penalty in a range of circumstances. Going into argument, only one justice—William Brennan—was known to be a committed abolitionist. Hopes were low among the courts’ liberal law clerks. “More than 700 people now sat on death row,” Mandery writes. “Furman v. Georgia would be the case of the year, but from the clerks’ perspective it was an all-but-lost cause.”

But there was hidden reason for optimism: Thurgood Marshall and William O. Douglas were also ready to strike down the death penalty. Tony Amsterdam, Furman’s lawyer on behalf of the NAACP Legal Defense Fund, needed two more votes. He went for the court’s hoped-for center: Potter Stewart and Byron White. Stewart had expressed moral qualms about capital punishment. Both he and White were minimalists, generally reluctant to provoke social change by overriding the legislature or overturning past precedent.* But Amsterdam hoped to win them over with the argument that unfair procedures were leading to unfair results in death penalty cases, in violation of the Eighth Amendment. He gave the court four pages of statistics showing discrimination. He also argued that the sporadic application of capital punishment, at the whim of a jury’s discretion, made the decision about which defendants would die essentially arbitrary.

It almost worked. At the conference after oral argument, Stewart said he could not uphold the death penalty, and White called its application “impermissible,” saying he didn’t believe the punishment could be meted out fairly. With Brennan, Douglas, and Marshall, Amsterdam appeared to have his five votes.

And then Burger pulled off a masterpiece of manipulation. He announced he was changing his vote, so that he would be in the majority and could exercise his authority as chief to assign the authorship of the opinion. Burger told everyone to write—all nine justices—arguing that no coherent rationale for a majority stance had come together. 

Burger’s move was unprecedented. It created a monster: The opinions in Furman ran over 60,000 words. And with no one in charge, the five-justice majority unraveled. Brennan tried to write an opinion that would satisfy Stewart, but couldn’t. White remained silent throughout the spring. In the end, Mandery says, Stewart and White had a closed-door conversation in which they reached the following agreement: “Stewart would abandon his moral position against the death penalty and draft an opinion striking down the Georgia death penalty because of its sporadic use. White, in turn, would cast the deciding fifth vote against capital punishment, and write that the death penalty was not applied frequently enough to accomplish any social aim.”

White’s rationale opened up this response: If states executed more people, the death penalty could become constitutional again. Mandery says Stewart thought that would never happen. White’s opinion included the line that the death penalty “has for all practical purpose run its course.” The day after the Supreme Court announced its decision, the New York Times ran a huge headline heralding the death penalty’s end.

Stewart and White and the Times were wrong. By the end of the year, as Nixon warned of rising crime to win voters over to his law-and-order agenda, polls showed support for the death penalty start to shoot up. State legislatures took up the invitation to make the death penalty more routinized, passing new statutes that separated the guilt phase of a trial from the penalty phase and ostensibly channeled jury discretion by laying out aggravating factors for murder, if the jury found them present, that would make a defendant deserving of death. It was a sweeping movement: Over the next four years, 35 states passed new death penalty laws.

In 1976 the court heard challenges to five of the new statutes. This time, along with Justice William Rehnquist, Byron White said he would uphold them all. Harry Blackmun, a new Nixon appointee, expressed doubts only about a North Carolina statute that made the death penalty a punishment for rape.

And Stewart made another new deal, Mandery says. This time he teamed up with another new justice, John Paul Stevens, and Lewis Powell, who had voted to uphold the death penalty in Furman but was ready for a bit of compromise. It wasn’t much, though. The three men decided to strike down North Carolina’s law, along with a Louisiana statute that didn’t give defendants a separate sentencing hearing. But they left in place Georgia’s law, with its aggravating factors, and Florida’s, which called for presenting mitigating evidence about why a defendant did not deserve to die. And in another moment of misguided prediction and missed opportunity, the justices upheld Texas’ statute. The law looked like it guided juries by asking them three questions. But if the answer was yes, death was required—and the questions were so broad (was there “a probability that the defendant would commit criminal acts of violence?”) as to make death practically mandatory.

Mandery says the circumstantial evidence is “overwhelming” that White and Stewart made the 1972 side deal that kept the death penalty on life support. The White-Stewart deal “delegitimates 40 years of law on capital punishment,” Mandery told me when I called him. “For 40 years the law has been governed by the proposition that a non-arbitrary death penalty law is constitutional,” he said. “I proved to as near a certainty as possible that this proposition was arrived at over the course of weekend by two people, one of whom opposed the death penalty.”

Mandery says that if Stewart had stuck with his moral opposition, and somehow brought White along with him, the country would have accepted the end of capital punishment. He attributes much of the backlash against Furman to the country’s roiling over other titanic Supreme Court decisions, like the desegregation cases, and especially Roe v. Wade. I’m skeptical. For 35 states to pass death penalty laws in just four years was huge. In the 1980s the pace of executions was higher than it had been since the 1950s. In 1994 fully 80 percent of Americans told pollsters they supported the death penalty.

But I did wonder, as I read, whether the death penalty abolitionists would have done better to put their resources into state legislative campaigns or appeals in the state courts. That is one of Mandery’s what-ifs. It’s like today’s debate over gay marriage, in which most advocates think going state by state will produce stronger and more lasting change than one top-down Supreme Court ruling. I also winced over the abolitionist lawyers’ refusal, at oral argument in 1976, to give the justices any cover for compromise. Justice Powell asked Tony Amsterdam whether he thought execution appropriate for the commander of Buchenwald. Amsterdam said no. Powell called him back to the podium to ask which of the five laws before the court was the least offensive, in the LDF’s view. Amsterdam could have used the opening to pound the Texas law by making Florida and Georgia his least-bad choices. He refused. Texas has executed more than 500 people since that day, nearly five times as many as any other state.

Courtesy of W. W. Norton & Company

Here is Mandery’s last what-might-have-been: “What if the constitutionality of the death penalty could have been decided by each justice at the end of his life, with the benefit of his full collected wisdom?” In 1991 Lewis Powell said he would reverse his vote in Furman (and also McCleskey v. Kemp, the 1987 challenge to capital punishment on the basis of race discrimination that failed by a vote of 5 to 4.) The death penalty, Powell said, “serves no useful purpose.” In 1994, two decades after his votes the opposite way in 1976, Harry Blackmun famously declared: “From this day forward, I no longer shall tinker with the machinery of death.” No rule or procedure could make the application of capital punishment fair, he had concluded. In 2010 John Paul Stevens said that if he could change a single vote he cast on the bench, he would choose his decision to uphold the Texas death penalty statute. He has said more along the same lines since. The more these justices tried to apply the court’s law on death, the less they liked it.

Could the whole country ever reach that conclusion? It’s no longer constitutional to execute the mentally disabled, or rapists, or people who committed murder as juveniles. The number of executions nationally has lately been falling. Illinois, Connecticut, and Maryland recently repealed their death penalties. The Supreme Court has struggled with Texas over executions ever since 1976, and last term, a majority of five made it a bit easier for defendants there to challenge their convictions.

But Florida recently called for speeding up its pace of executions, even though it has the most errors in the country—24 exonerations of death row inmates since 1977. The state just killed a man with a 40-year history of terrible schizophrenia. And in Texas, Duane Buck still awaits execution even though at trial, the state’s psychologist said he was more likely to commit more violence because he was black. Meanwhile, as Mandery documents, we still can’t say conclusively whether the death penalty deters murder. And so the old questions about racism and fairness still haunt us. As they should.

*Correction, Sept. 9, 2013: This piece originally stated that Byron White was new to the court. In fact, he was appointed in 1962. (Return to the corrected sentence.)