Part 2 of 2

The Supreme Court’s Dismaying Muddle

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved…I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.
-Justice Harry Blackmun, dissenting, Callins v. Collins, 1994

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.”

It was the old boy’s last big chance to strike a blow for tradition. Shortly thereafter, Harlan retired and died. If he had lived even another year he would have been shocked to see the dazzling speed with which the Supreme Court can change its mind. It happened with Furman v. Georgia. The nine separate opinions totaled 50,000 words, the most voluminous dialogue in Court history. Stanford University law professor Robert Weisberg likened it to “a badly orchestrated opera, with nine characters taking turns to offer their own arias.”

The case dealt with appeals from three black men who had been sentenced to death, one for murder, the other two for raping white women. William Furman was the murderer. At trial he gave this description of how he accidentally shot his white victim through a door: “They got me charged with murder and I admit, I admit going to these folks’ home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn’t intend to kill nobody. I didn’t know they was behind the door. The gun went off and I didn’t know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That’s all to it.” As a matter of fact, the Georgia Supreme Court accepted Furman’s explanation, but it nevertheless upheld the death sentence. (Let us pause to point out the obvious: This was, as Furman’s attorney said, “a regular garden-variety burglary murder.” A white defendant would have got maybe twenty years.)

In Furman, as in McGautha, the Supreme Court was asked if the death sentence was “cruel and unusual.” This time, it said yes—but it was a weak yes. Only two of the 5-to-4 majority, William Brennan and Thurgood Marshall, thought capital punishment itself cruel and unusual, but all five of the majority said the way the penalty was applied was unconstitutional.

What galled them was that judges, prosecutors and juries were administering the penalty so randomly, so capriciously, that it was like “being struck by lightning,” said Justice Potter Stewart. Justice Byron White—who wanted more, not fewer executions—complained that after being exposed to “hundreds and hundreds of federal and state criminal cases” that could have resulted in the death penalty and seeing only a handful of defendants selected for execution, he considered the system totally irrational and just based on luck. Justice Brennan also emphasized the element of luck: “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year,” even though thousands of murders are committed annually, “it smacks of little more than a lottery system.”

The Supreme Court’s decision was good news for the 600 or so residents of the nation’s death rows, including such notables as Robert Kennedy’s assassin, Sirhan Sirhan, whose sentences were invalidated. Some were freed; most were resentenced to life terms, with a chance for parole. (The man who gave his name to the case, William Furman, was paroled in 1984, worked on construction jobs and stayed out of trouble. His voting rights were restored in 1988.)

The records of the 600 show just how capriciously the death program had been operating. Two-thirds of the condemned were on Southern death rows, the most by far in Florida and Texas, with Georgia and Louisiana close behind. All of the eighty-one who had been condemned for rape were in the South, nearly one-third of them in Florida, with Georgia and Louisiana tied for second place. Fifty-five percent of the capital offenders were black, 43 percent white, 1 percent Hispanic. Records also showed that juries had rarely allowed the men’s backgrounds to have any mitigating effect on their sentences. True, most had previously committed crimes, but these were usually property crimes. Nearly three-fourths had never been convicted for a violent crime. Only 39 percent had ever before been in an adult prison.

In Furman, the Court was given the best chance it had ever had, and probably the best chance it would ever have in the next hundred years (considering how seldom liberal judges are appointed), to escape from the death-penalty dilemma. Why, oh why, did they stop short? Why did they say merely that the death penalty was unconstitutional because it hadn’t been applied fairly? Why not say it was unconstitutional because it could never be applied fairly, and was therefore cruel and unusual?

Instead, the Court sent the state legislators back to the drawing board to try again.

The Blind Leading the Blind

For the states whose lawmakers believed in capital punishment, which was most of them, Furman was an excruciating turn of events. They were left, as Robert Weisberg put it, with “an emotional and confusing ensemble of exhortations…to solve a problem that the Court could barely identify.” They were expected to come up with a system that would give at least the symbolic appearance of objectivity and predictability. Fumbling along, three dozen states eventually wrote “reformed” death-penalty statutes. Ironically, most of the new laws did exactly what the defense attorneys in the McGautha case had asked for and which the Court’s majority at that time had scorned.

In most states, the new laws called for splitting the capital punishment ritual into two parts. First the jury would decide whether the defendant was guilty. If it judged him guilty, then the jury would reconvene to decide whether he should pay for his crime by being executed or by serving some portion of his life in prison. Most, but not all, of the new statutes required that the death-penalty phase be guided by a checklist of aggravating and mitigating circumstances surrounding the murder: What was the killer’s motivation? What was his criminal record? How brutal, how indefensible was the crime? Who were his victims? Did he deserve sympathy because of his age, because of a wretched home life, because he was an addict, because of his mental state at the time of the murder, etc.? The checklist was clearly intended to keep the jury’s mind narrowly focused, to keep it from wandering all over the psychic landscape as it allegedly had in the pre-Furman days. On paper these checklists had the refined air of scientific formulas. In fact, they were anything but scientific, and they would, as the result of other Supreme Court rulings, become about as well-ordered as the contents of a typical wastebasket.

Florida, which had more people on death row than any other state when the old law was thrown out, apparently felt naked without one, and it was the first to write a new law, completing it within six months. But other Deep South states were close behind. Some were so eager to start executing murderers again that they began filling up their death rows even before the new statutes had been approved by the Supreme Court. But they didn’t have to wait long.

Populism Gone Berserk
In Furman, the majority had said the manner of deciding who would be sentenced to death row was unconstitutional, but they left hanging the question of whether the punishment itself was “cruel and unusual” and hence unconstitutional. In 1976 that was answered when the Court approved the new death penalty statutes in Georgia, Texas and Florida.

The lead opinion in Gregg v. Georgia was written by Justice Stewart. In Furman, he had complained that death was being dealt out with all the randomness of “being struck by lightning.” Now, speaking for the Court’s majority, he came up with an absolutely bizarre rationalization for concluding that the new statutes would result in judgments as dependable as a light switch. Why would this be? Because they were the voice of the local people—“the community’s belief,” as expressed by the legislatures. What! He thought the US Supreme Court should bow to the biases of local and state polls in constitutional matters of life and death?

If the Georgia legislature (or the Texas legislature, or any other legislature) said capital punishment was needed, then who was the Court to say it was wrong? The Court, Stewart wrote, had a high regard for “federalism” (i.e., states’ rights) and “the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility.” These questions should be left to the legislatures to evaluate “in terms of their own local conditions and with a flexibility of approach that is not available to the courts.”

This was indeed a strange, stunning surrender, coming as it did from a Supreme Court that over the preceding twenty-two years (beginning with the Brown v. Board of Education ruling in 1954), had been knocking the unholy crap out of “community belief” in segregation in half a dozen major civil rights cases. Like those civil rights cases, of course, most death-penalty cases had emerged from the South.

Florida’s Folly, and Spenkelink
Not surprisingly, the execution that haunted the new era was in the South’s most enthusiastic sentencer of the damned, Florida. As previously mentioned, the victim was John Spenkelink. On May 25, 1979, he became the first person in twelve years to be executed in the United States against his will. (Gary Gilmore had invited Nevada to kill him, and it complied in 1977.)

The background and foreground of Spenkelink’s case dramatically demonstrated the way race and social status would continue to dominate the death penalty despite the “reforms” of Furman. It also illustrated the confusion that would forever arise from the new guiding standards.

The death penalty is supposed to be reserved for the “worst of the worst” crimes. In an effort to guarantee this, Florida listed this catchall category—“the capital felony was especially heinous, atrocious and cruel”—among the aggravating circumstances that a jury should consider when deciding on the penalty. The Florida Supreme Court said it felt “the meaning of such terms is a matter of common knowledge” and “an ordinary man would not have to guess at what is intended.” However, apparently fearing that trial judges and lawyers might stumble where ordinary men would not, the court supplied another bushel of modifiers, explaining, for example, that “heinous” means “extremely wicked and shockingly evil” and that “atrocious” means “outrageously wicked and vile.”

Well, OK. But watching the Florida high court itself interpret these words was another matter, and quite enough to leave the ordinary man scratching his head. For instance, Thomas Halliwell, a former Green Beret, became so enraged at his lover’s husband that he shattered the man’s skull with a steel bar and then used a machete, hacksaw and fishing knife to cut up the body for storage in a garbage can and footlocker. The trial jury said that was indeed a heinous, atrocious and cruel crime, but the Florida Supreme Court said it was not, because the mutilation had occurred “many hours” after the crime.

Well, if beating somebody to death with a nineteen-inch steel bar wasn’t especially heinous, how about beating somebody to death with a roofing hatchet? How about mortally wounding somebody with a knife and leaving him to die painfully over a long period? How about tying up three people and shooting them in the head? When convictions raising these questions came before the court, the answer in each case was no, not “especially.” And in other cases that were no bloodier or even far less bloody, the court ruled in the opposite direction.

One such case involved Spenkelink, a 24-year-old former convict and drifter. He had picked up a hitchhiker named Joseph Szymankiewicz, another former convict, in the Midwest, and together they drove to Florida. Along the way, Szymankiewicz, who was larger and stronger, forced Spenkelink to have sexual relations with him and bullied him into playing Russian roulette. When they reached Tallahassee, Florida, Spenkelink discovered that his abuser had also stolen his money. They fought, and Spenkelink shot Szymankiewicz to death.

That was on February 4, 1973. Shortly thereafter, a Tallahassee jury convicted Spenkelink of first-degree murder, finding the crime especially heinous, and recommended the death penalty. The trial judge (who in Florida is empowered to overturn a jury’s verdict) agreed, and so did the Florida Supreme Court. This was just an ordinary skid-row killing, one trashy nobody killing another trashy nobody in an ordinary fight, after considerable provocation and with considerable justification. If the rhubarb had taken place in Miami, at the other end of the state, where homicides are as common as cumulus clouds and attract little more attention, Spenkelink would probably have drawn ten years in the penitentiary and four inches on page 12 of the Miami Herald.

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.

Unguided Discretion Is Back
As a member of the Black Liberation Army, Elwood Barclay had helped murder a white youth in an attempt to start a race war. Although his trial was in Jacksonville, a city with a racist past, the jury kept its cool and voted seven to five to give Barclay a life sentence.

But there was a hitch. In writing their death-penalty statutes to satisfy Furman, four states, including Florida, had given judges the power to override the jury. The jury’s decision is merely advisory; the judge may rule otherwise. For Barclay, Judge R. Hudson Olliff ruled otherwise. This was the fourth time Olliff had overruled juries that voted for life. No matter by what margin the jury voted for mercy—and in one case it was voted by ten to two—Judge Olliff was unswayed. Unlike the juries, he did not find a single mitigating factor in the lives of these four men. But in Barclay’s case, he went dramatically beyond merely overruling the jury. Judge Olliff listed several “statutory” aggravating factors that in fact did not exist—and then threw in a very special one of his own creation: Barclay, the judge said, deserved death because he had preached hatred of white people. That was definitely not statutory.

Florida law did not permit any changes in its statutory aggravating circumstances. Surely the appellate courts wouldn’t let Olliff get by with messing around like that. When the case reached the Supreme Court, several Justices, even those among the majority (who approved of Barclay’s death sentence), sounded amazed that the sentence could have been upheld by the Florida Supreme Court. But never mind. “Mere errors of state law,” said Justice William Rehnquist, “are not the concern of this Court.”

With the Barclay decision, one critic said, the Court was telling state Supreme Courts “that they could uphold death sentences even where the penalty trial seemed clearly to violate federal or state law.” With the Court now willing to accept inflated and mangled aggravating statutes—coming on top of the Lockett expansion of mitigating statutes—where did that leave the penalty trial? It had become a malleable legal toy, like Silly Putty, for the courts to play with.

Further evidence that “guided discretion” was dead came when the Supreme Court ruled that it was perfectly constitutional for a state to allow a trial judge to reverse a jury’s recommendation of life. Whoa! The whole purpose of Furman and Gregg had been to get away from the “unguided discretion” of juries. Was the unguided discretion of a judge, overruling the guided discretion of a jury, any better?

In any event, the decision hardly raised the quality of mercy in the judicial system. Surveys have found that in the four states where judges have the power to override juries, they almost always use it to change the verdict to death. In Alabama, the ratio is ten to one.

The Last Gasp of Death-Penalty Reform
By the early 1980s, many legal scholars were saying that the Supreme Court had simply given up trying to keep any part of the Furman and Gregg reforms alive. Law journals were beginning to fill up with essays about what Robert Weisberg called “the deregulation of death.” With the aggravation and mitigation rules in limbo, only proportionality remained of the post-1976 reforms, and it was about to die, too.

In its Gregg v. Georgia decision—approving models for the new death-penalty statutes—the Court had gone out of its way to urge other states to adopt the “proportionality” part of Georgia’s statute. It required the state Supreme Court to ask two commonsense questions: In this particular case, is death an excessive punishment or is it proportional to the offense? When compared with factually similar cases, was the death sentence excessive in this case? One would assume that this kind of weighing and comparing is so basic to justice that the states wouldn’t have to be goaded into doing it. In any event, to please the Supreme Court, most states had written proportionality requirements into their capital statutes.

But by the early 1980s the backlog of prisoners awaiting execution had become such a mob (1,209 in 1983) that state appellate courts, most of which had never been keen on proportionality anyway, began complaining that they just couldn’t handle it, particularly the part about comparing one case with others that were similar—a process that is extremely time-consuming but that is the very heart of capital justice. So in 1984 (Pulley v. Harris) the Supreme Court said, OK, just forget it—proportionality isn’t a constitutional requirement. After that, most states put proportionality aside and did forget it. Georgia’s “model” proportionality statute has in the past twenty-four years been used only twice to overturn convictions.

Rehnquist-izing Justice
One thing became quite clear as the 1980s rolled along: The Court was getting meaner, as the ranks of its hard-liners got bigger. In 1953, when William Rehnquist was a clerk at the Supreme Court and Julius and Ethel Rosenberg were about to be electrocuted at Sing Sing, he wrote a memo saying, “It is too bad that drawing and quartering has been abolished.” When he grew to Justicehood, perhaps he was no longer so bloodthirsty, but he was not shy about saying the death industry’s execution line was far too slow. His impatience was shared by Justices Byron White and Lewis Powell. In 1981 Rehnquist gained another ally in Sandra Day O’Connor, and in 1986 he could celebrate not only being promoted to Chief Justice (over great protests from Senate liberals) but also being joined on the bench by Antonin Scalia, that philosophical heir of Torquemada.

Clearly, the Court very much wanted to make life as difficult as possible for defendants. Preferably, to shut them out.

For instance, as we have seen over and over, the most authentic complaint that can be made by most condemned men is that they were given an incompetent defense attorney and therefore did not receive a constitutionally guaranteed fair trial. But the Court was tired of hearing that complaint, and in 1984 (Strickland v. Washington), it said the complaint would no longer be considered grounds for review unless the defendant’s lawyer did such a lousy job that there was a “reasonable” likelihood that the lawyer’s mistakes brought about the death sentence.

Well, specifically, just how bad could a trial attorney be and still not be considered “ineffective”? What if the lawyer slept through the trial? That is accepted as reasonably effective assistance. What if the attorney made no effort to bring in witnesses who could prove the defendant’s innocence—as happened to Gary Graham—at the guilt stage of trial? That’s OK, even though it’s clearly malpractice. What if he didn’t present any mitigating evidence—none at all—at the sentencing phase? That’s OK too (Burger v. Kemp, 1987). In fact, since 1984 not one appeal based on ineffective assistance has been granted by the Supreme Court.

Other actions have almost shut the door on habeas corpus, which used to be a generously available way to cut through the bureaucratic bullshit and get to a hearing in federal court. Now, even if you come with a wagonload of evidence of your complete innocence, there are Congressional dictums and Supreme Court rulings that can be used to turn you away.

From Congress, with Clinton’s blessing, came the Anti-terrorism and Effective Death Penalty Act of 1996. This act, for the first time in history, sets a one-year deadline for filing a federal habeas corpus petition after the defendant has waded through the state appellate system. Furthermore, a federal court will no longer be allowed to review the fairness of a defendant’s trial; instead, it will decide only whether the state court “unreasonably” applied federal law in denying the defendant’s appeal. Federal courts, in short, are a rubber stamp to state actions in capital cases. Naturally, the Supreme Court has embraced the AEDPA’s restrictions.

Three years earlier, the Rehnquist Court had already started slamming the door. In the infamous Texas case Herrera v. Collins, it declared that if a defendant has evidence showing his innocence, he has no right to a federal hearing unless he presented the evidence before the state’s statutory cutoff date (in Texas, that’s thirty days after the trial), unless the defendant presents a “truly persuasive show by clear and convincing evidence… that no reasonable juror would have found the defendant eligible for the death penalty.”

Most legal scholars, reading between the lines, summarize Herrera as meaning it is not unconstitutional to execute an innocent man.

The practical effect of Herrera and the AEDPA is seen in the execution of Gary Graham. He was convicted and sentenced to death for fatally shooting a man in a Houston grocery-store parking lot in 1981. He was convicted almost solely on the testimony of a woman who said she saw Graham that night, but only fleetingly, through the windshield of her parked car. Graham’s trial attorney conducted virtually no investigation and put on no witness during the guilt phase of the trial.

In 1993, however, Graham got help from some real attorneys, who found that police lab tests showed that the gun taken from Graham on the night of the murder was not the weapon that fired the fatal bullet. The new attorneys interviewed two employees of the store who had seen the murderer and were certain it wasn’t Graham. Several of the original jurors came forward to state that they would not have convicted him if they had heard the testimony from the other eyewitnesses.

Too late. Graham’s new evidence of innocence was offered after the mandatory cut-off date. He was executed this past June 22. Herrera and the AEDPA killed him.

In the Herrera decision, Chief Justice Rehnquist stated, perhaps in jest, that even if an innocent defendant could get no help from the courts, he could “file a request for executive clemency.” Graham, as everyone knows, was dealing with a governor who did not believe in clemency. But, for that matter, few governors do.

The Young and Retarded Are Fair Game
Along the way the Rehnquist Court made such notable contributions to the uplift of society as ruling that the Constitution approved the execution of the mentally retarded and the execution of murderous 16-year-olds.

Admittedly, the mental defective who brought about one of those rulings, Johnny Paul Penry, is an exceedingly brutal guy. On the morning of October 25, 1979, he entered the home of Pamela Carpenter in Livingston, Texas, and beat her, stabbed her with scissors and raped her. She died a few hours later. He was on parole when he did it, having recently served time for a previous rape. By the death-penalty standards of any state, that crime would clearly have made any normal person eligible. But is capital punishment really meant for someone who has had organic brain damage from birth, has an IQ of between 50 and 63, is rated by clinical psychologists as having the mental age of a 6-and-a-half-year-old child and has been unable to finish the first grade?

In 1989, the Supreme Court said yes, it was constitutional (Penry v. Lynaugh).

Raising this issue on appeal for the penniless defendant was a goodhearted but over-the-hill lawyer. His performance in presenting his plea to the US Supreme Court got this review from Alan Dershowitz:

To say the least, his presentation was a disaster. The attorney spoke haltingly, and his words were difficult to understand. He seemed not to understand some of the justices’ questions. When he did, he frequently gave the wrong answers. He couldn’t find needed references. He became so bogged down in technical detail that Sandra Day O’Connor had to remind him, with only three minutes left in his argument time, that he had not addressed the main issues—whether it was constitutional to execute a mentally retarded prisoner.

Needless to say, the Court decided that Penry’s death sentence was perfectly constitutional.

This was a rare instance of bad luck creating good luck. The deplorable defense Penry received got national attention and, as mentioned earlier, prompted one of New York’s best law firms to come to his rescue. Spending hundreds of hours of pro bono time on his behalf, it has kept Penry’s case alive, and Penry alive, too.

Actually, some states hadn’t been holding off until they heard from the Court. They had been executing murderers with IQs in the 50s and 60s since 1984, and they still are. Some experts in mental retardation count thirty-four executions in this group so far.

As for teenagers, in 1988 the Court said Oklahoma couldn’t execute someone who was under 16 at the time of the crime, but it was OK if Kentucky wanted to kill someone who was at least 16. But virtually all states have refused to even consider going below 17. Sixteen death rows now hold eighty men, a third of them in Texas, who were juveniles when they murdered. Since 1976, seventeen men have been executed for crimes committed when they were juveniles.

Anyone who has been keeping score on death penalties will not be surprised that most of these mental defectives and teenagers have dark skin.

Racism Wins Again
That brings us to what surely is one of the most indefensible judgments relating to race in the Court’s history; no, not as vile as the “separate but equal” of Plessy v. Ferguson, but it spoke to the same junkyard justice that whites had historically reserved for blacks. The case was McCleskey v. Kemp, a Georgia case decided in 1987. If the Supreme Court never again within our lifetime takes up the question of cruel and unusual punishment, we can at least say that McCleskey closed that drama in a duplicitous style perfectly befitting the character of the Court.

Aside from the fact that McCleskey, a black man, was sentenced to die for killing a white person, the details of the crime and trial are not worth mentioning. All that really matters are the statistics compiled by law professor David Baldus, statistician George Woodworth and attorney Charles Pulaski Jr. for McCleskey’s appeal, and the response of the Supreme Court’s majority.

The Baldus study has been called “the most elaborate attempt ever made to show the disproportionately racial impact of any public policy.” Examining more than 2,000 murder cases that took place in Georgia in the 1970s, it shows that people charged with killing whites were 4.3 times more likely to get a death sentence than those who killed blacks. Obviously, prosecutors and juries in Georgia didn’t put a very high value on black lives. The death penalty was handed down in 22 percent of cases involving black defendants and white victims but in only 1 percent involving black defendants and black victims. The basis for McCleskey’s appeal was that he was being discriminated against because of his race and because of the race of his victim, in violation of the Fourteenth Amendment, which promised equal justice. He asked that his death sentence be overturned.

Justice Powell, who had been a corporate lawyer for forty years in Richmond before being appointed to the Court by Nixon in 1971, wrote the lead opinion, joined by those other four pallbearers, Chief Justice Rehnquist and Justices White, O’Connor and Scalia. The opinion boiled down to this:

(1) Just because blacks as a group are discriminated against doesn’t mean that McCleskey can prove he was personally discriminated against. (2) The Baldus study may indicate “a discrepancy that appears to correlate with race,” but “apparent disparities in sentencing are an inevitable part of our criminal justice system.” Nobody’s perfect. (3) Then Powell really got silly. If we let these blacks get by with claiming they were picked on because of their color, he said, the next thing you know, defense lawyers may start arguing that jury decision-making was influenced by such arbitrary variables as “the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim.”

Because the Supreme Court ruled stupidly in McCleskey, the nation’s old race problem is now joined by a new one. Up to now, the debate has been over whether race dictates convictions in state murder trials. But the federal government has death-penalty statutes too, and although it hasn’t executed anyone since John Kennedy was President, that seems about to change. Juan Raul Garza is scheduled to die next year. President Clinton put it off for his successor to handle because the case has brought international criticism. Garza is a migrant Mexican farmworker who became a big-time drug dealer, smuggling tons of marijuana from Mexico and, in the process, murdering three men in Texas. His lawyers don’t claim he was innocent of that crime. They claim that the death penalty is unfairly applied by racially biased federal prosecutors. Garza is one of twenty men on federal death row. Sixteen are minority defendants (most are African-American). Gregory Wiercioch, a lawyer with the Texas Defender Service, wants to know why federal prosecutors asked for the death penalty for Garza but not for gringo defendants in a dozen cases like his—multiple drug-related murders. If the McCleskey decision had gone the other way, this kind of sordid pigment-counting would have been avoided.

If the McCleskey decision depresses you, let your depression be modified just a little by the fact that after its author, Justice Powell, retired, his biographer asked him if there were any votes he had made while on the Court that he would now change. Yes, he said: He would change McCleskey. He added, “I would [now] vote the other way on any capital case.” He also admitted that at the time he wrote the opinion for McCleskey, he knew precious little about statistics. Ah, what might have been! If Powell had only had his change of heart before McCleskey, which, like most of the major death-penalty cases, was decided by one vote, 5 to 4, that case just might have sent such strong shock waves through the legal system that it would have wiped out capital punishment.

Another notable change of heart occurred, this one for Justice Blackmun. For years, though he said he was offended by the death penalty, he had voted to uphold it without blanching. Indeed, before reaching the Supreme Court, he even wrote an appellate court opinion upholding the death penalty for rape. But before he left the Court he was sick of all that. Better too late than never, perhaps, but the folks on death row probably don’t see much difference between the two.

So what has the Supreme Court left us with? Hugo Adam Bedeau, one of the best scholars of this grim history, says, “We now have the most complex and cumbersome system for administering the death penalty the world has ever seen; it is neither fair nor efficient. Few like it, and the more familiarity one has with it, the less one finds to like about it.”

Ironically, during the years when the Supreme Court was frantically trying to hold the jerry-built death penalty together, the nations we are most closely linked to—including Canada, Germany, France, Italy and Britain—were abolishing it.

Now, except for places like China, Iraq and Iran, we have it all to ourselves. But isn’t that appropriate for the world’s only superpower?