A Punishing Debate

Professor Evan Mandery chronicles the decades-long debate over the death penalty.

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The use of executions in pursuit of justice has divided the nation for more than four decades. In "A Wild Justice: The Death and Resurrection of Capital Punishment in America," Evan J. Mandery, a professor at John Jay College of Criminal Justice and former capital defense attorney, chronicles watershed moments and key personalities that have shaped the debate and thereby the U.S. justice system. Mandery recently spoke with U.S. News about the Supreme Court's controversial rulings, how they've impacted the application of the death penalty today and what may change in the future. Excerpts:

Has the death penalty always been legal in America?

There was a four-year period between 1972 and 1976, when a Supreme Court decision had the practical effect of ending the death penalty in the United States.

What led to that period?

There were two pivotal events. In 1963, Justice Arthur Goldberg and his law clerk, Alan Dershowitz, advanced an argument, for basically the first time it had ever been made, that the Constitution was an evolving document and that the death penalty was a cruel and unusual punishment. Until the early 1960s, with one exception, nobody had argued that the death penalty was unconstitutional. It was not debated. Thereafter, a band of lawyers at the NAACP Legal Defense Fund began a litigation campaign to end executions in the United States. They achieved for an incredible 10-year period – incredible, whatever your views on the death penalty are – a suspension of executions in the United States. And they believed that by tying up the court with legal challenges and creating the backlog of people on death row that it would be harder for the Supreme Court to pass in favor of the constitutionality of capital punishment and thereby allow the floodgates to open.

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Why did the court reverse its 1972 decision on the death penalty?

The Supreme Court does occasionally reverse itself, so for example Brown v. Board of Education is a reversal of Plessy v. Ferguson. But it's very rare that it happens as quickly as it did here. It's a complete reversal in sentiment, it's not technically a legal reversal, since in 1972 the court did not say the death penalty was unconstitutional in all cases. Even though it didn't say that, everybody, including everybody on the court, believed that Furman v. Georgia meant the end of the death penalty in the United States.

Why did the reversal happen so quickly?

There was an enormous backlash. People can offer different theories of why the backlash occurred; I'll offer mine. I think it's tied up not just in the sentiment about capital punishment, but as a reaction to other court decisions that were perceived as overreaching – notably, Roe v. Wade and the desegregation and busing decisions. And the difference between Furman, which was a 5-4 decision with nine different opinions, and the [others] is that Furman was correctly perceived [as] vulnerable, whereas the civil rights decisions were not. So states responded either by making the death penalty mandatory [for murder and rape] or by attempting to curtail its arbitrariness.

What impact did those two decisions have?

A huge impact. Even though [Justice] Potter Stewart was a moral opponent of capital punishment, he said the problem was that it was too random. And so states and people acted as if the problem with [the] death penalty was its arbitrariness. And in 1976, the court said that you can't have [a] mandatory death penalty, and a nonarbitrary death penalty is okay. And for 37 years, states and the Supreme Court have been engaged in an exercise of trying to work out and determine what a nonarbitrary death penalty law is. And it's, to say the least, a very fraught enterprise.

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What does the title "A Wild Justice" mean?

It's a quote from Sir Francis Bacon: "Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out." Also, what I'm trying to do is more than just tell the story of the death penalty, [but also to show] how the Supreme Court works. And there's no simple theory that explains how this case, and I think many other important cases, are litigated. It's a crazy story filled with twists and turns. And, you know, most legal history and most cases are taught to law students as if justices are operating according to some simple theories of human behavior, and I don't see any evidence that that's the case. It's a complex political institution, as you would imagine.