Sam Spital on 50 Years Since Gregg v. Georgia and Examining the Decision’s Legacy and Unfulfilled Promises

Robin Maher 00:00

Hello, and welcome to 1201, The Death Penalty in Context. I’m Robin Maher, the Executive Director of the Death Penalty Information Center. Our guest today is Sam Spital, Associate Director Counsel of the NAACP Legal Defense Fund. The Legal Defense Fund has been at the forefront of death penalty litigation for decades, playing a crucial role in landmark Supreme Court cases that shaped the U.S.’s capital punishment system. This year marks the 50th anniversary of Gregg versus Georgia, one of the most important death penalty decisions in U.S. history. Sam is here to help us understand that decision, its predecessor, Furman vs. Georgia, LDF’s role in bringing these cases, and the enduring legacy of LDF lawyer Anthony Amsterdam, known to his friends as Tony, one of the most influential death penalty attorneys of the modern era. And I should quickly note that Tony Amsterdam was a former board member for the Death Penalty Information Center. Thank you so much for joining us, Sam.

Sam Spital 01:04

Thank you very much for having me, Robin.

Robin Maher 01:06

Well, first, to set the stage for our listeners, let’s, let’s go back in time. A wave of successful abolition efforts began in many U.S. states starting in the late 19th century and continued into the 20th century. After a high of 199 executions in 1935, execution numbers began dropping and continued to drop for the next 30 years. By 1968, after years of legal challenges and declining public support, there were zero executions. The death penalty was largely viewed as racist, in part because it was also viewed as a descendant of the many thousands of racially motivated lynchings that occurred throughout the South in the latter half of the 19th and first half of the 20th centuries. The country seemed to be on the verge of national abolition, and LDF’s civil rights commitment led it to invest heavily in that effort. Ultimately, it led the legal challenge that resulted in the 1972 U.S. Supreme Court decision, Furman vs. Georgia. Sam, can you walk us through that decision and explain its significance?

Sam Spital 02:16

Yeah, absolutely. But first, just wanted to note how powerful it is to hear you talk a little bit about the history and think about the moment that we’re in and think about how far we still have to go these many years later and how the idea that we were on the verge of abolition in many ways in 1970, 1971, and now we’re in 2026, and while there has been some progress as well in recent years, we’re not on the verge of abolition, and that’s really a very heartbreaking story at the same time. To talk a little bit about Furman specifically, Furman was a really unique case in a lot of ways. It was a case that LDF brought under the Eighth Amendment, the Cruel and Unusual Punishment Clause, in an effort to ensure that there would be abolition and that the Supreme Court would sort of finally say that the death penalty was unconstitutional. It was a case argued by the great Tony Amsterdam. Another LDF lawyer who was very involved in the case was Elaine Jones, who was later LDF’s fourth president director counsel. So, it’s a very important case from LDF’s perspective. And it was a really monumental case because in Furman, the Supreme Court did invalidate the death penalty as it was then practiced throughout the United States. So, there was a moratorium effectively on the death penalty as a result of the decision. But what was very unusual about the decision sort of jurisprudentially was that there was no single opinion from the court. Every justice wrote a different opinion. And, you know, there’s this doctrine now about how you sort of figure out what to do when you have sort of the narrowest ground. But in Furman, that was really, really challenging even to think of it that way because different justices, you know, all wrote these individual opinions, and to sort of identify what united their analysis was very complicated. I think that what did unite them, the five justices in the majority, was the recognition that the death penalty was being applied in an arbitrary way, that there were not sort of clear standards about distinguishing if one believes that there can be some cases where the death penalty is appropriate, that the worst of the worst, as the term is used, from anyone else. And so that meant that there were these arbitrary factors that were infecting who was sentenced to death and who was not. In the words of Justice Stewart, sort of being sentenced to death was like being struck by lightning. It was just completely random. And so that was sort of the unifying principle that the five justices united around and led to this temporary moratorium for the death penalty.

Robin Maher 04:56

Right. And so, we had all of the death sentences at that time commuted to life without parole. All of the state statutes that were in effect at that time were invalidated. But as I said just a moment ago, we were on the verge of what many believed was a time of national abolition, when there were zero executions in the year 1968. The reaction to the Furman decision was a little bit surprising, right? I mean, we had suddenly, many states moving quickly to reinstate capital punishment with new statutes that were drafted to try and address some of these constitutional concerns that were raised in the Furman decision. What do you think drove that response to Furman?

Sam Spital 05:38

It’s a really, it’s a great question. I think what I would draw upon is Justice Marshall’s opinion in the Gregg vs. Georgia cases where the Supreme Court reconsidered the issue in the wake of all those statutes that you just mentioned. I think 35 states sort of rushed to re-promulgate death penalty statutes. And he said, very candidly, that he was affected and surprised by the sort of speed at which states committed to reinstituting the death penalty, especially given where public opinions seemed to be at that moment. My speculation is that one of the things that I think has been a unifying theme in at least relatively recent times with the history of the death penalty is that there seems to be a disconnect between how legislators or voters might think about the death penalty in the abstract and when people are confronted with the facts of a particular case or they’re sort of closer to an actual decision. So it’s sort of one thing. And I think that what we saw in the wake of Furman was that there was still perhaps a surprising amount of support in the abstract for the death penalty, the rhetoric about really horrendous crimes. And that led to support in the abstract that yes, there may be some crimes where it was in the abstract, there was legislative support and popular support for restoring the death penalty. But what I think Justice Marshall said in his dissent is that when people are actually forced to reckon more specifically with a particular case and they really understand the frailties of humankind, the mitigating circumstances, all those sorts of things, even if they support the death penalty in the abstract, they’re much less likely to support it in an individual case. But the sort of fundamental problem with our system is that you know, by then it might be too late because the state has sort of set things up in a way that really marches towards executions.

Robin Maher 07:46

Yeah. And I’ve always thought that Justice Marshall’s comments about the importance of understanding the death penalty has really founded the educational efforts that organizations like LDF and the Death Penalty Information Center continue to invest in because the truth of the death penalty for many people is still not really well known. You know, some commentators have also suggested that the way the death penalty was being used at the time of the Furman decision was that most of the death sentences and the really expansive use of the death penalty was in the southern states. And so, some commentators have concluded that this was viewed pretty personally as attack on their way of life, their culture, their heritage, the way that they wanted their laws to be working. What do you think of that idea?

Sam Spital 08:35

I think it reflects this disconnect between the death penalty as practiced and the death penalty as an idea in a lot of ways. And the death penalty has a really disturbing history in this country. And, you know, I think there’s been scholarship about how in some states at least, it was to some degree a replacement for the decline of lynchings, of extrajudicial killings of black people, primarily black men. And as lynchings reduced because of efforts by civil rights organizations and advocates. In the 1940s, the use of the death penalty increased. And one of the ways that it was the most commonly used and the most used in a very racially discriminatory way is that black men convicted of raping white women would be sentenced to death at very high rates, whereas other people convicted of rape were not sentenced to death. So, there was certainly, I think, a difference in the history and the practice of the death penalty in a number of southern states. And what sort of carries forward with that through today is that the places where the death penalty is still sort of used in any significant way in terms of new death sentences, in terms of execution, are increasingly concentrated in a very small number of jurisdictions, and most of those jurisdictions are still in the South. So, there’s this, I think, through line, through history, and that continues this also kind of difference between the death penalty as an abstract concept and then places where it’s really being practiced.

Robin Maher 10:20

So, let’s fast forward. We were in 1972 when the Furman decision was decided. We talked about the fact that a lot of the states rushed back to the legislatures and drafted new statutes. And four years later, the Supreme Court was asked to decide whether these statutes addressed adequately the concerns raised by the Furmandecision. Can you explain what happened both on the run up to that case and then what the court decided?

Sam Spital 10:46

Yeah, so, you know, so as we talk, after Furman, most states did reenact death penalty statutes that were designed to address the arbitrariness that the Supreme Court had identified in Furman as a fundamental constitutional infirmity. And there were different paths that different states took. Some states took the path of we’re going to have a mandatory death penalty. We won’t have any arbitrariness because anyone convicted of a certain kind of capital offense would be automatically sentenced to death. Other states took the approach where, at least on paper, they said that there an opportunity for a defendant after being convicted of a capital offense to present mitigating evidence, which over time has been understood to be very broadly defined as any evidence that a reasonable sentencer could conclude warrants the sentence less than death because to some degree it mitigates the offense or shows some, some human quality of the defendant. And so those were two kind of broad categories of statutes that the Supreme Court considered in Gregg and Gregg and companion cases. I think there were five cases that were argued at the same time. And in those cases, essentially what the Supreme Court said is that the states that allowed that consideration of mitigating evidence in a way that was supposed to be sort of guided by some level of standards, that those statutes were constitutional, whereas the mandatory death penalty statutes not constitutional because they prevented defendants from having an opportunity to have sentencers consider mitigating evidence and evidence that would show that a sentence less than death was warranted.

Robin Maher 12:21

So, it’s interesting that you mentioned mandatory death sentences, since we’ve seen a few attempts by states recently to reintroduce the idea of a mandatory death sentence, which, as you say, has been declared unconstitutional for 50 years now. So, but interesting that we here we are again. Let’s come back to Tony Amsterdam. So, he was an LDF lawyer for many years. He was really the architect of both of these cases and then became a beloved NYU professor for many years. He’s stepped away from an active role right now, but he’s still very much involved in cases. What was his role at LDF and what made him such a pivotal figure in death penalty litigation?

Sam Spital 13:04

Yeah, it’s so hard to begin to do the question justice because Tony Amsterdam is the preeminent, in every sense of the word, sort of capital defense, capital appellate lawyer in the history of the country even, and so his work began before Furman. He was very involved in representing capital defendants in different stages of the process in the 1960s. He himself had been a clerk for Justice Felix Frankfurter. And he had been, even when he was working with LDF, I think he was already a professor as well. So, he was brilliant. He was, as I understand it, he was interested, he became interested in death penalty work because of the racial discrimination and the death penalty. He, like LDF, very much understood that this was an issue about racial justice, that we would not have the death penalty in this country if it were not for the persisting legacy of anti-Black discrimination and the sort of, to your question earlier, the link between the death penalty and the extrajudicial killings of black men through lynchings, he understood as a racial justice issue. He then, as you say, was the architect of the strategy in Furman, but he was also the architect of so many other legal strategies that have proven pivotal to limiting the use of the death penalty, even if, you know, Gregg, sadly, sadly, from our perspective, allowed states to reinstitute some aspects of that, some aspects of the death penalty. And so, he was successful in defeating those mandatory death penalty statutes. And he was successful in ensuring that this concept that there has to be an opportunity for individualized consideration that a defendant has to be able to present mitigating evidence. He was responsible for that. And he also played an incredibly important role in the work of ensuring that the Supreme Court at least would say they were committed to the principle that any death sentence marred by any sort of racial discrimination was unconstitutional and that the court would really be committed to enforcing that principle. Whether they have sort of adequately enforced it is a harder question. But, you know, Tony was just at the center of all of those doctrines and all of that work.

Robin Maher 15:25

Yeah, it was really, really well said. I mean, Tony is quite a beloved figure also in the capital defender community. And in my previous positions, I had the pleasure of working with him on more than one occasion. And he was incredibly generous with his time and his advice. and always responsive, no matter what the question and how silly it might have meant to him. He always made you feel like you asked a very thoughtful, probing question. Just an incredibly, again, generous and kind man. To the community, he’s been a real thought partner. Would you agree?

Sam Spital 16:03

Absolutely. I mean, the length of his career also has just been remarkable. So, when we think about that, he was doing this work and he was the architect of so many of these doctrines and not not only in terms of the legal analysis and thinking, I mean, he represented so many people and saved so many lives because of his work. But he was doing that work in the 1960s. And then, you know, through our careers, Robin as well, he’s been, as you said, a mentor, so generous, generous with his time and just such a, he, through my career as well, has been the person that you would go to to say, help me figure out the best argument to try to convince the Supreme Court of this. Please, just a half hour of his time with a brief was gold because he would help you figure out the way to say things in the most persuasive way. And if you would participate in a moot, he would always ask the question of, what is the legal rule that you might be able to persuade the court to adopt? You’d be able to say it in one sentence, here’s what I think it is. He has been the leader of the capital defense community for six, seven decades. I mean, it’s just it’s absolutely extraordinary. Yeah.

Robin Maher 17:14

Yes, it’s it’s it’s astonishing. Yeah. And of course, all of this that was so critically important, having someone like Tony available to us was so important because after Gregg vs. Georgia, The court really placed itself at the center of everything that had to do with the death penalty. I mean, with its decision, it said, we are going to set up new procedures, new safeguards, and we are going to regulate the use of the death penalty in a very specific way. And so that was really the start of decades of litigation at the court where the court had opportunities, was presented with challenges to really shape how the death penalty was going to be used in a very important way. As you sort of hinted, Sam, in recent years, we’ve seen the court step back from that role. But there was a time when everything important about the death penalty came out of the Supreme Court. Any limitations, any attempts at expanding it, was all at that court. And so Tony, with his brilliance and his strategic perspective, was really invaluable for so many litigators. But here we are, 50 years later, and we saw the promise of Gregg. We saw all of the expectations the court had that we could use the death penalty in a way that was both consistent and fair with all of these changes that were put in place. What are the results of that promise? Have we seen the results of that vision or have we failed?

Sam Spital 18:47

We have massively failed. And I think some of the best evidence of the failure comes from the perspectives of Justice Blackmun and Justice Stevens, who were both in the majority in Gregg and thought at that time, we can have these standards that will ensure the death penalty is fairly applied and we can address the arbitrariness. But by the end of their careers on the court, they both had recognized quite directly that the project had been a failure and that it was actually, well, I’m going to use the word impossible. I’m not sure if they would exactly use that word, but whether it’s theoretically impossible or impossible because of the way it was actually administered in practice. It was a failure and the death penalty was not in any way, shape or form being applied any less unfairly, any less with any lack of arbitrariness compared to the way it was being applied in Furman. And I think the case that is the most starkly illustrative of that is the McCleskey case, which was decided in 1989, where there was this also a case that was brought by LDF overwhelming evidence that race, both of the victim and of the defendant, was playing a crucial role in whether or not someone would receive a death sentence in Georgia. And the evidence was just, you know, so powerful and compelling as the dissenters in that case explained when it reached the Supreme Court that, you know, any candid assessment would require an attorney sitting down with a Black client, a Black client convicted of killing or accused of killing a white person saying, honestly, one of the most important factors that’s going to determine whether or not you’re sentenced to death is not the heinousness of the crime. It’s not how much mitigation you’re able to present. It’s not your prior history of aggravated offenses. It is your race. It is the victim’s race. And yet, despite this evidence, this in the five-to-four decision, the Supreme Court said, you know, we’re not going to find that persuasive to invalidate death sentences in Georgia, because one, and they were overt in saying one of the concerns we have is that if we did that, it would open the floodgates because the implicit part being we know how much racial discrimination there is at all levels of the criminal legal system. And so what would this could extend beyond death sentences and it could open up the floodgates to challenges on racial discrimination grounds to other aspects of the criminal legal system. And so once the Supreme Court made clear that it was not going to enforce even the most fundamental principle of all in, any sort of system that claims to be committed to the rule of law, that race must play no factor in the choice to actually take someone’s life, you know, the most awesome sort of power that the state has. I think it just became clear that the Supreme Court, even if one believes that theoretically there could be some fair application of the death penalty, the Supreme Court was not going to actually insist upon that level of fairness.

Robin Maher 21:46

Yeah, a fear of too much justice, I remember.

Sam Spital 21:49

A fear of too much justice, as Justice Brennan famously said, yes.

Robin Maher 21:52

Yeah, yeah, really, really sobering line. Well, you know, as we as we mark this 50th anniversary, I don’t want to leave us on a negative note. I mean, I think the work that LDF has been doing for decades is such a shining example of what organizations can do when they invest in issues like fairness and justice for everyone that is in the criminal justice system. The educational efforts that organizations like DPI invest in, you know, we’re also out there telling the truth about this. And I know that the American public is hearing that message because public support for the death penalty is at a five decade low. I mean, they are hearing that the evidence shows this is not working in the way that the Supreme Court intended or really that anyone intended for it to work. What sort of lessons, what sort of words of hope or inspiration can you leave with people who see that executions are once again on the rise and are concerned about a potential resurgence of the death penalty?

Sam Spital 22:50

I think that history of the death penalty speaks a lot to kind of us as a society more generally. One of the things that Justice Brennan said, and I’m not going to sort of be able to quote it to fully do it justice, but in his dissent in that McCleskey case, is that it may be easy for a lot of readers to think that what happens to Warren McCleskey, the Black man who was facing an execution in Georgia, likely in part because of his race or his victim’s race, To think that has nothing to do with your life. And so, to sort of not care about racial discrimination, the death penalty. But in fact, the way that the legal system and our commitment to the rule of law in these cases is so fundamental to our society’s commitment to basic principles of fairness, to the rule of law, to having a multiracial democracy that follows constitutional principles and the fact that I think the Supreme Court, I would say, betrayed its obligation to honor those principles in the capital context has, I think, said something about our society more broadly. And I think we’ve seen that lack of commitment to the rule of law, to sort of basic constitutional principles in multiracial democracy, in fact, so many other aspects of our society. So but I realized that you asked me to you not just sort of end on the the challenges because it is a moment where there is great possibility for change I think in different directions in our society generally and with respect to the death penalty specifically. So yes there are reasons to be concerned as you said. But I think there are also reasons to be optimistic to see that the actual sort of increase in death sentences, in new death sentences or sort of the use of the death penalty, even in jurisdictions that previously had used the practice much more, you know, it’s still much, much less than it was, say, 20 years ago, I mean, in really dramatic ways and then also to see in terms of where courts are that, you know, the Supreme Court is not the only relevant actor in the field. So actually a case that LDF is working on now along with our partners at the ACLU and the Office of the State Public Defender in California, is sort of a new McCleskey challenge and McCleskey type challenge in in the California Supreme Court and showing that court that the evidence is even stronger actually than the evidence in McCleskey, but that also under California state law, the sort of they need not repeat the mistakes of the U.S. Supreme Court made in McCleskey. So, there are, you know, there continue to be different paths to challenge the discriminatory use of the death penalty, the unfair use of the death penalty. And I think, as you said earlier, even though this is a very challenging moment in a lot of ways in the country generally, and with respect to those who are advocating for renewed use of death penalty statutes that have been invalidated for 50 years, there is still not the kind of receptivity from the public at large to that kind of pro-death penalty rhetoric. So I think, those are reasons for hope. And because this is such a potential time for change, I think, it’s potentially also an opportunity to really move things in a more fundamental way towards the abolition point that, you know, we were on the precipice of in 1971 and has taken us 55, 56 years later. And maybe we’re not back there yet, but there’s reason to, I think, be optimistic that that is something that we still can see, you know, in the in the medium term.

Robin Maher 26:35

Yeah, that’s that’s a terrific note to end on, times of great challenge and great opportunity. Yeah.

Sam Spital 26:41

Yes.

Robin Maher 26:42

Well, Sam, I can’t thank you enough. Thank you so much for sharing your thoughts. To learn more about the work of the NAACP Legal Defense Fund, please visit their website at NAACPLDF.org. To learn more about the death penalty across the US, you can visit DPI’s website at deathpenaltyinfo.org. To support the 1201 podcast and all of DPI’s work, please visit deathpenaltyinfo.org/donate. And to make sure you never miss an episode, please subscribe to 1201 in your podcast app of choice. Sam, thank you again.

Sam Spital 27:18

Thank you, Robin.