The Death of Punishment: Searching for Justice among the Worst of the Worst

Part I

Man the Measure

1

Killing the Wrong People

It is easy to get angry—anyone can do that . . .

but to feel or act towards the right person to the right extent at the right time

for the right reason in the right way—that is not easy

—Aristotle, Ethics

As a small child, I knew that Nazis were evil and Adolf Hitler deserved to die. My mother staunchly opposed capital punishment, but she made an exception for Hitler. I was five when controversy flared in our house as the United States executed Julius and Ethel Rosenberg, accused Soviet spies. My ultraliberal mother believed the Rosenbergs innocent and insisted they were killed because they were Jews. My father, always sober and rational, taught me that any citizen who gave or even tried to give Joseph Stalin the atom bomb deserved to die.

In elementary school, kids would pull legs off spiders and laugh as the creatures struggled. I once pulled two limbs from a daddy longlegs. Then I thought about it from the spider’s point of view. I felt sick and tried to make it up to this creature I’d crippled by leaving dead bugs for him to eat.

But Leech Rock was different.

At summer camp, we’d come in after swimming in the lake, bleeding, slimy leeches still clinging to us. You couldn’t rip them off without losing your skin too. So we flicked them off with a lit match. The animals fell, helpless at our feet. Now what to do? We certainly wouldn’t throw them back to attack us again. So we burned them in a ritual at Leech Rock. After all, unprovoked, they had shed our blood. It never occurred to us they were just being leeches. But then, too, maybe by killing them, we were just being human.

During the Cold War of the 1950s, the Soviets killed political dissenters and prepared to destroy the United States. I learned in school that tyrants have always killed dissenters. But never here. I loved the United States, and in fourth grade I wrote patriotic poetry.

As I grew up, freedom became a big issue for me. I refused to keep my parakeet Tippy locked in a cage; he had a right to fly around the room whenever he wanted. My mother threatened to abandon my room to filth. I took her dare. Amanda, our black housekeeper, hated the dirt and scolded me for letting the bird make a mess. But when I explained why, Amanda snuck into my room to clean droppings from my shelves. My parents detested racism and racists. In Mississippi in 1955, the Klan murdered Emmett Till, a 14-year-old black boy, for flirting with a white woman.¹ I wasn’t focused on the details, but I remember how upset they were when an all-white jury in Mississippi acquitted young Emmett’s killers.

My parents also told me the story of Leo Frank. How in 1913, someone murdered young Mary Phagan in the basement of an Atlanta pencil factory. An ambitious prosecutor pressured witnesses and convinced a jury to convict Frank, the prominent Jewish factory superintendent. The real killer—a janitor there—cooperated with the prosecution. Frank’s lawyers desperately fought to postpone his execution date while the judge who sentenced Frank to die admitted serious doubts about his guilt. Even the real killer’s lawyer urged the governor to spare Frank’s life. On his last day in office, the Georgia governor commuted Frank’s death sentence, then fled the state with his family.² Vicious anti-Semitic attacks in the press stirred up public passions, and a Klan-led mob stormed the prison. They drove Leo Frank back to Mary Phagan’s childhood home. While Frank protested his innocence and begged the mob to return his wedding ring to his wife, they lynched him.³ No one prosecuted Leo Frank’s killers⁴; his prosecutor, Hugh Dorsey, went on to become governor.

So I knew early on that prejudice stained the system; trials did not guarantee justice. The guilty might walk free while innocents were wrongly accused, falsely condemned, and killed. Those in power would make it murder or make it all right with a wink. And yet I still felt certain that Hitler and the racists who killed Emmett Till deserved to die.

Then came that day in eighth grade when I discovered Abraham Lincoln did not free the slaves. I idolized Lincoln and carried around Carl Sandberg’s multivolume biography.⁵ My social studies teacher, determined to strip me of idolatry, demanded I actually read the Emancipation Proclamation and report to the class exactly which slaves Lincoln in fact freed. Of course it turns out that the Great Emancipator freed exactly no one he could. Slaves living in the Confederacy were now free to rebel and die in the attempt. But everywhere the Union Army controlled—in Maryland, for example—the commander in chief left all slaves in bondage.

Lincoln fell, and then came God. Reading the Old Testament in Bible study class revealed a divine support for genocide⁶—a God who would command the death penalty for homosexuality,⁷ failing to keep the Sabbath,⁸ or mouthing off to your parents.⁹ A God who let the Holocaust happen. And when I challenged my Sunday school teachers, they could only insist, No man can comprehend His ways, while they had no problem preaching against the death penalty, although the Bible clearly called for it.

First slavery, now segregation, tore America apart. I grew up looking down on the South. How could segregation be the law? I hated Southern sheriffs with attack dogs tearing up freedom fighters. Civil rights crusaders became my new heroes. The Soviets might be ahead of us in the space race, but Martin Luther King Jr. stirred me, while John and Bobby Kennedy glamorously and gloriously forced racial integration.

November 22, 1963, eleventh-grade social studies, seventh period. Studying the American Civil War again, only this time I knew that Lincoln hadn’t freed the slaves. So no big surprises. The principal’s metallic voice crackled on the intercom: President Kennedy had just been assassinated. Then Jack Ruby assassinated Kennedy’s assassin, Lee Harvey Oswald, on TV!¹⁰ What was happening?

Off I went at 17 to Tufts University, loving my country, still grieving Kennedy, and believing in the death penalty. In 1965, we college freshmen fought to keep our door nearly closed with a woman in our dormitory room, while the women fought for the right to wear pants on campus. By our senior year in 1969, we had occupied buildings in protest and shut down the school. In addition to sex, drugs, and the Beatles, the war in Vietnam consumed us. And not only because we might be drafted to fight and die. Our political science professors taught us that Ho Chi Minh strove for a more just society. An admirer of the United States, although a Communist, Ho had modeled Vietnam’s Constitution on ours. Only he wanted Vietnam—and not American big business—to control his country’s natural resources. So President Eisenhower canceled promised elections because, as he explained, If free elections had been held, Ho Chi Minh would have won 80 percent of the vote.¹¹

In 1966, I marched against the war. We protesters formed a thin, ragged line down the middle of Manhattan’s Fifth Avenue, while large, hostile crowds lined the sidewalks. That summer in Chicago, Richard Speck murdered eight student nurses in their dorm. As he took them off to a bedroom, one by one, to strangle or stab each one to death, Speck lost count. Curazon Amurao, his would-be ninth victim, numb with terror, witnessed the scene from under a bed. She lived to identify Speck by his tattoo: Born to Raise Hell.¹² Richard Speck, a monster by any measure, awaited society’s verdict. Most of America cheered the jury that sentenced Speck to die. I wanted him killed, badly.

I was no law junkie, but the US Supreme Court made it exciting: Miranda v. Arizona¹³ led an avalanche of opinions applying the Bill of Rights to the states, while court orders restrained local prosecutors and police from violating defendants’ rights. Back on campus, along with the war, guilt at our nation’s racist legal past tore at the breasts of moderate whites. We the People had screwed the Indians and then the blacks. And now, at last, our Supreme Court took seriously constitutional commands of equal protection and due process. The most radical among my fellow antiwar activists hated the United States and sneered at the justices’ token gestures, laying their liberal guilt trip on the nation. They denounced the court as just another part of the system and characterized me and my fellow patriotic protesters as only halfway.

The death penalty, though, really got me ostracized from the antiwar movement. Capital punishment provoked volatile arguments among us 19-year-olds. An unofficial national moratorium covered the United States, as judges and governors stayed all executions while a hundred different constitutional challenges from abolitionist lawyers made their way through the courts. For several months, no state had executed a condemned killer. But to me, that made the Vietnam War all the more perverse: In Asia we napalmed and killed thousands of innocent women and children, while in Chicago corrections officers served condemned killer Richard Speck his breakfast each morning.

Hugo Adam Bedau, this nation’s leading academic opponent of capital punishment, chaired the philosophy department at Tufts. In 1968, students and faculty organized to abolish the death penalty in Massachusetts by popular referendum. The department could not be my home. When the people of Massachusetts voted decisively to keep capital punishment, campus abolitionists bitterly reacted in defeat, attacking my absurd inconsistency.¹⁴ How could anybody be antiwar yet pro–death penalty? (You hear echoes of that even today—how can a person oppose abortion, be pro-life, and also be pro–death penalty?)

To me it was simple: We were killing the wrong people.

My protests against authority became my own. In college, I refused to major and almost did not graduate. But a tolerant administration bent the rules. After school, while my friends camped out at Woodstock and the United States fixated on the moon walk, I wandered around Europe on a playwriting fellowship and taught American culture at Vincennes, a left-wing French university. In the library there, I discovered the Great Books of the Western World.

For the next several months, I tried to soak up the wisdom of the classics—those highest lights of abandoned skies. Different worlds reached out to connect me to the Great Scene. Much of it is a blur now, but from the start, Plato’s struggle with the Sophists struck home. The Sophists insisted that everything was relative, subjective, and arbitrary, including justice.

Man is the measure of all things, proclaimed Protagoras.¹⁵ Whatever a person could be made to believe became the truth—for him.

But Plato clung to real, objective, absolute truth and justice. And I clung to Plato. Of course the Sophists might have a point: Smoking pot, resisting the draft, and gay sex could get you punished. But only because those in power outlawed it. Killing eight student nurses in their townhouse or 6 million Jews in gas chambers made a man deserve to die. Not because I wanted it, not because most of us wanted it—but because objectively, in fact, he deserved to die.

Aristotle’s concept of equity grabbed me: The strictest justice—legal justice, by the book, according to the rules—can sometimes be the greatest injustice.¹⁶ We need equity—fuller justice, particular-to-the-situation justice. Did equity include mercy, I wondered? And how did it relate to poetic justice?

I was soaking up this stuff in Paris when Charles Manson hit the International Herald Tribune. Fiend du jour, this counterculture perversion had commanded his crazed followers to butcher the pregnant actress Sharon Tate and other innocent victims, smearing pig and helter skelter on the walls in the victims’ blood.

The voice of your brother’s blood cries to me from the ground, God said to Cain in Genesis. Blood pollutes the land, and no expiation can be made for the blood that is shed in it except by the blood of him who shed it, the Bible later declares. Blood pollution may sound archaic, but it still captured my feelings of anger and disgust. Manson and Speck deserved to die regardless of whether anybody else would be deterred by their deaths—regardless of whether they continued to threaten us. As long as they lived, I felt polluted.

I moved on in the Great Books to John Stuart Mill, which led me to his mentor, Jeremy Bentham. According to these great utilitarians, people seek pleasure and avoid pain. Because a crime brings a criminal immediate pleasure, in order to restrain these rational, calculating pleasure-seekers from satisfying their harmful desires, society must make its threatened punishments more certain, swift, and severe.¹⁷ Bentham’s utilitarian calculus appealed to me—so orderly and crisp, with costs offsetting benefits. But in the end, Bentham’s worldview, although rational and logical, felt wrong and unreal.

Bentham would have executed only those traitors whose lives posed a continuing threat of massive violence and social disruption. (Contrary to popular opinion, the Catholic Church, even today, tolerates the death penalty in this very unusual circumstance.¹⁸) But who counted as a traitor? War supporters labeled Americans who refused to fight as traitors, although many of us loved our country. The British Crown in 1775 ordered Samuel Adams and John Hancock to hang for treason.¹⁹

History had taught us: Might makes right. Nobody described it better than the ancient historian Thucydides. In their great war, Athens controlled the seas and Sparta the land. The little country of Melos only wanted to be left alone. But the Athenians would not allow this tiny island nation to remain neutral. So they gave the Melian representatives an ultimatum: Pay tribute to Athens or die. When the Melians tried to protest this injustice, the Athenian representatives cut them off: Justice depends upon the equality of power to compel. The strong do what they can; the weak accept what they must.²⁰ Perhaps there was no truth, no justice. Perhaps everything was relative, arbitrary, subjective. Maybe, as the Sophists insisted, justice was nothing but the interest of the stronger.

For an extended moment I doubted my commitment to moral truth. Then I remembered Charles Manson and Richard Speck. I felt certain that whatever the future costs and benefits, they should die—for the sake of the past. Plato had it right. Evil was real. When it came to justify punishing it, however, Plato disappointed me:

In punishing wrongdoers, no one concentrates on the fact that a man has done wrong in the past or punishes him on that account, unless taking blind vengeance like a beast. No, punishment is not inflicted by a rational man for the sake of the crime that has been committed—after all one cannot undo what is past—but for the sake of the future, to prevent either the same man or, by the spectacle of his punishment, someone else, from doing wrong again.²¹

According to Plato, we may only kill those criminals we cannot correct, incorrigibles whose souls were beyond repair.²² I needed a great mind to tell me that Hitler, Speck, and Manson must die, regardless of whether they could someday be converted into amiable golfing companions. The suffering of their tortured victims simply demanded it.

My flirtation with Plato and Bentham’s pragmatic justification for punishment ended. Back in the Great Books I found Bentham’s arch-opponent, Immanuel Kant: A human being can never be manipulated merely as a means to the purposes of someone else. He must first be found deserving of punishment before we give any consideration to the utility of this punishment for himself or for his fellow citizens. Only the law of retribution can determine exactly the kind and degree of punishment.²³ At last a kindred spirit? If he has committed a murder, he must die, Kant insisted. There is no sameness of kind between death and remaining alive even under the most miserable conditions.²⁴ I carefully copied these passages into my notebook: But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it.²⁵

Kant came closer to how I felt. But Kant, too, ultimately disappointed me, simplistically lumping all murderers together. Hitler, Speck, and Manson deserved a fate much worse than that reserved for common killers. Besides, Kant seemed too detached and devoid of anger. I understood our abstract duty to kill these monsters: They had committed capital crimes. But unlike Kant, I hated Charles Manson, Richard Speck, and other vicious predators like them. I wanted them to feel their victims’ pain before they died. I searched further in the Great Books but could not find my voice.

2

Playing The Game

When I returned from Paris in 1970, America had lost its taste for the war. Revelations that American soldiers had raped and murdered Vietnamese women and children at My Lai became America’s national shame. Ohio national guardsmen killing protesting students at Kent State soon became our national tragedy. Even police assigned to antiwar protests now seemed sympathetic to our cause.

On March 29, 1971, after seven months of trial and nine days of deliberation, the jury that convicted Charles Manson of capital murder now decided his fate. In determining which punishment shall be inflicted, the trial judge instructed them, you are entirely free to act according to your own judgment, conscience, and absolute discretion. The law itself provides no standard for your guidance.¹ Each juror for herself, each situation on its own merits. Ideally, like Plato’s Statesman, unconstrained by rules but with a full view of the particular set of circumstances, the jury would decide the best response. Each juror would search for Aristotle’s equity—particular justice, greater justice than rule-bound justice.² With no rules to bind them, no written standards to guide them except their own outrage, Charles Manson’s jury fixed the penalty as death. Three weeks later, the judge confirmed the jury’s choice, pronouncing the death penalty almost compelled by the circumstances.³

It was one thing to sentence sadistic predators to die—but another actually to kill them. In the real world, translating choice into action introduces uncertainty and indeterminacy. An athlete might choose the right shot, pass, or kick but can rarely perfectly execute it. In a game, we automatically play the exact move we choose. A sport, however, requires skill to execute it. An architect draws up plans, but the construction crew must deal with the facts on the ground. The composer selects the sequence of notes, but an orchestra must still perform it, never exactly as the composer imagined.

The jury and judge had announced Manson’s death as their officially chosen move. But nobody moved to kill him. Public officials had put all executions on hold until the US Supreme Court spoke definitively.

Three weeks after Charles Manson’s judge pronounced sentence, the US Supreme Court decided McGautha v. California. McGautha’s jury had received the same instruction as Manson’s: life or death according to their absolute discretion. Unlike Charles Manson, however, Dennis McGautha committed felony murder. A robbery gone bad had produced a dead victim. Although legally he had committed first-degree murder, McGautha hardly qualified as the worst of the worst. Appealing for his life, McGautha’s lawyers challenged the jury’s unguided discretion as fundamentally lawless and unconstitutional.⁴

England had already gone through this. For centuries all murders (and most other felonies) carried an automatic death penalty. But no one actually executed the majority of these officially commanded death sentences. A merciful king would spare the condemned and commute the sentence. Or savvy juries knowing better than to trust in executive clemency rebelled against mandatory death penalties, resisting the written law and ignoring the facts in order to acquit. It got so bad that bankers lobbied Parliament to eliminate the theoretical possibility of capital punishment for fraud.⁵ Only then would jurors actually convict, thieves would fear real but lesser punishment, and the law would better safeguard property. Parliament eventually rejected the death penalty for most lesser crimes, reserving mandatory death for murder.

Pennsylvania took the next step, in 1794, declaring that several offenses labeled as murder differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment.⁶ Thus, Pennsylvania made a great moral leap and became the first state to restrict its mandatory death sentence only to Murder of the first degree, which it defined as premeditated murder and also any kind of killing committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary.⁷ Other states soon adopted this radical reform. But Pennsylvania’s new First Degree Murder proved too broad. Distraught, unmarried mothers killing their newborns, survivors in failed suicide pacts, battered women killing their abusers as they slept—all these unlawful intentional homicides could be labeled deliberate and premeditated murder. And yet surely these killers lived in a different moral universe than Manson or Speck. They hardly deserved to die.

American juries continued to disregard the law and acquit the guilty in order to spare their lives. Finally states surrendered and moved to the opposite extreme. Thus, California instructed McGautha’s and Manson’s juries that they had absolute and unfettered discretion to decide life or death.⁸

Unrestrained juries can act arbitrarily or methodically discriminate because of race or ethnicity, thus violating basic constitutional guarantees of equal protection under law. By treating like cases differently, unfettered discretion easily leads to moral anarchy. However, mandatory capital punishment statutes, which treated all cases of first-degree murder alike, easily led to manifest injustice: People who did not deserve to die would be executed.

In the end, although admitting the surface appeal of McGautha’s argument, the Supreme Court majority insisted on the uniqueness of each killer and each killing and held it beyond present human ability to channel a jury’s discretion.⁹ Confirming the wisdom of the ancient Greek philosopher Heraclitus, that you cannot step in the same river twice for fresh waters flow on, the Court held that unlimited discretion did not violate due process.¹⁰

So that summer of 1971, the Supreme Court seemingly signaled the states it would not interfere with their death penalty schemes. Under basic principles of federalism, each state defines, detects, prosecutes, and punishes crime as it sees fit. Would judges and governors once again sign death warrants? Would the move chosen be executed as chosen? Would they finally kill Manson and Speck?

My wife’s Harvard Law School professor, Philip B. Heymann, whose course I was unofficially auditing, alerted us to the Court’s holding in

McGautha. Professor Heymann also taught us how lobster poachers had lobbied the Florida legislature to enforce antipoaching laws because the catch was getting too thin for them to poach efficiently. It struck me watching football how sometimes a team could be better off getting punished—penalized five yards for delay of game. Moving away from the goal only improved the kicking angle, actually making it easier to score. Taking the penalty could apply perversely or paradoxically in a number of places. Should day-to-day prison routine become better than hardscrabble life on the street, it might be best to take the penalty of a warm bed and hot breakfast. Professor Heymann welcomed my perspective and urged me to come to law school. I hoped instead to develop my game/sport philosophy into a doctoral thesis at Tufts. But when my would-be adviser dismissed a first draft as crap, still believing in game and sport as metaphor worth mining, I listened to the law professor and applied.

Before starting Harvard Law School, I got a summer job as a researcher at Newsweek. My duties included cutting and distributing the Associated Press wire reports. Blind men climb Mt. Fujiyama. . . . The annual meeting of the International Anarchists Convention breaks up in disarray! I don’t recall whether it made the magazine that week, but I was outraged when the AP reported that the US Supreme Court had reversed Richard Speck’s death sentence and remanded the case back to Illinois because Speck’s jury had been tainted by excluding death penalty opponents.¹¹ How could any fair-minded jury deny that this sadistic mass murderer deserved to die? But then why put the state to the expense of a retrial when no one was being executed? The Illinois Supreme Court just added Speck’s case to its growing hold pile.

That summer, Newsweek executives accepted my cover story suggestion: Bobby Fischer, an American hero in the making, demolishing the Soviet elite on his way to the world chess championship.¹² I loved chess and couldn’t play it worth a damn. But I did get to spend a couple of days alone with Bobby Fischer. Other players, Fischer explained, would make moves they knew to be unsound, relying on an inferior opponent to miss the flaw. But not Fischer. If he saw a move’s defect, Bobby insisted, he simply would not make it. He would search for a move he, himself, couldn’t figure out how to defeat. He would search, if necessary, until his time ran out. Better to lose, trying to find the answer, than to rely on your opponent’s stupidity and make a knowingly unsound move, even if it won.

So I imagined the United States and the Soviet Union squaring off, vital interests in conflict all over the globe. At the brink of all-out nuclear war and with no obvious way to resolve the crisis, in one final desperate moment, the US president and Soviet premier agree that instead of annihilating each other, one side would prove their superiority by a single game of computer chess.

One game for the fate of the free world.

For six months, missiles at the ready, each side developed and programmed its best chess machine, but, by mutual agreement enforced by inspection, neither side could try it out in advance. On the day of the Great Contest, with liberty hanging in the balance, the USSR got the white pieces and thus the first move, a standard king pawn forwarded two spaces.

The American computer instantly resigned.

It turns out the United States had in fact solved the game of chess. We discovered and our program proved it: With perfect play on both sides, moving second was fatal. With best play, white wins from the first move. By solving the game of chess, the Americans had reduced it to a puzzle, like tic-tac-toe. The Soviets hadn’t discovered this. But while we sought and found the answer and solved chess, nobody on the American side programmed the machine to fight, to take advantage of its own tactical superiority—even if it found itself (initially or ever) in a theoretically losing position. Never resign. Fight on. Norman Mailer found this story most original and urged me to publish it. The lesson from this tale, however, came from Fischer’s clock running out while he searched for the perfect move. Some death penalty opponents remind me of Fischer: Demanding perfect justice, they will reject the best we can do at the moment.

I admired the theoretical purity of this weird genius whose chess philosophy struck me as a profound, though dangerous, metaphor. The best can be the enemy of the good. A search for perfection could disable effectively good but imperfect choices. As we sat in a dive of a Chinese restaurant Fischer had chosen, flies happily hitching a ride on the slowly turning fan blade, I asked the grandmaster if he thought computers would solve chess and thereby destroy the game. Fischer believed that no machine could be programmed with the intuition necessary to actually solve the game. But computers would someday defeat the best of men. Just because a racing car can circle the track in seconds doesn’t mean people won’t go watch Olympic athletes run the mile.

Regardless of whether computers ever solved chess, I found it comforting that justice could never be mastered by machine. Transcending the strict application of rules, equity could never be reduced to an algorithm or written into a single, simple formula. Centuries of experience made it established wisdom: No legislature could perfectly guide juries in advance to morally consistent decisions as to who should live and who should die. The McGautha Supreme Court majority had declared it beyond present human ability to identify before the fact those criminal homicides and their perpetrators which call for the death penalty.¹³ And because no legislature could do it perfectly, no state needed to try.

During that first semester at law school, dozens of challenges moved up through the courts as the death penalty moratorium continued to hold. Abolitionists fought each execution tenaciously, sometimes getting commutations for condemned killers. While isolated attacks on capital punishment might succeed, this committed band of scholars and activists must have been pessimistic, post McGautha. The US Supreme Court had just rejected due process challenges to standardless discretion. The Court could hardly be expected to outlaw those same systems as cruel and unusual under the Eighth Amendment.

That year, I was cast out as a racist but only by the whites. In his first semester teaching, Duncan Kennedy, later a founder of the left-wing Critical Legal Studies movement, assigned us the case of an unmarried black woman on welfare, summarily expelled from public housing after taking drug dealers as lovers who used kids in the building as runners. These were times of great liberal guilt and self-consciousness at giving offense, at being thought insensitive, let alone racist as the civil rights movement picked up steam. Her summary and discriminatory expulsion from public housing angered our class. The air in the classroom felt stifling, polite, and politically correct. So I raised my hand. It’s a shame there’s not enough good housing to go around, I declared. But if somebody has to live in crud, let crud live in crud.

Stunned silence. Then the hiss rose like a steam radiator. My section publicly shamed me. Afterward, classmates turned away and avoided me—except for a couple of black students who approached. We have no problem with what you said, one assured me. And we understand where you come from. The ones that hissed you are either lying or they don’t know where they’re at. I appreciated their kindness and company, but I never quite got what was so terrible about believing that crud should live in crud.

In those days, publicly expressing retributive sentiments was a little like farting in class. A single incident, the talk of the moment, might soon blow away. But in criminal law class, when only a handful of us openly supported capital punishment, again I publicly declared the unacceptable: Some people deserve to die. We have an obligation to kill them. I wasn’t ashamed but I did feel the power of ostracism—denunciation, I would later learn the sociologist Emile Durkheim called it.¹⁴ Years later, killers on death row would tell me how it hurt to hear the jury formally declare they should be cast out to die.

After McGautha allowed states to give juries unbounded discretion, individual challenges continued. Hundreds of condemned killers on death rows, including Charles Manson, waited. Millions of Americans, impatient for them to be killed, also waited. No one I knew could have predicted that within months, the Supreme Court would lurch capital punishment to a grinding halt, and then, in response, capital jurisprudence would explode into the modern era.

The local preshock struck in the land of McGautha. In February 1972, California’s Supreme Court struck down that state’s death penalty across the board! Capital punishment, the Court held, cruel[ly] degrade[d] and dehumanize[d] all who participate[d] in its process. Death as punishment was unnecessary to any legitimate goal of the state and incompatible with the dignity of man.¹⁵

The US Supreme Court might allow vengeance or retribution as legitimate under the Eighth Amendment. But in California, the state high court ruled, We do not sanction punishment solely for retribution.¹⁶ Of course, as the court acknowledged, many condemned prisoners have committed crimes of the utmost cruelty and depravity. And such persons are not entitled to the slightest sympathy from society. . . . Nevertheless, it is incompatible with the dignity of an enlightened society to attempt to justify the taking of life for purposes of vengeance.¹⁷

This from the same court that a few years earlier had upheld McGautha’s completely standardless death penalty. Now suddenly the dignity of an enlightened society outlawed all capital punishment. Based as it was on the California Constitution, not even the US Supreme Court could reverse that decision.

So six California judges suddenly rendered meaningless dozens of unanimous jury condemnations stretching over decades. By their single opinion, they denied the people of California—and the rest of us around the country—the cleansing that would come from knowing that Charles Manson had, at last, been put to death.

A few months later, the jurisprudential earthquake struck. In June 1972, the US Supreme Court, 5–4 in Furman v. Georgia, launched the modern era by striking down the death penalty as administered across the United States.¹⁸ Hundreds of essays have analyzed and dissected the nine separate opinions that comprise this landmark case. Although no justice of the five who made up the majority joined in anybody else’s opinion, that group essentially split into two camps.

Justices Brennan and Marshall, absolutists like the California Supreme Court, found the idea of death as punishment an unconstitutional violation of human dignity. The other three, however—Douglas, Stewart, and White—struck down the death penalty as currently administered, either because it allowed for racial discrimination or was unconstitutionally arbitrary—like being struck by lightning. The four dissenters joined together to declare that each state had the right to decide for itself. But no Justice—not one—expressed the slightest support for death as punishment. And although there were nine separate opinions, all nine Justices denounced retribution as a bad reason to punish.

It was a great day for the worst of the worst. As a result of Furman, death rows across the United States emptied. Illinois took Richard Speck off the hold pile and transferred him to general population to serve a life sentence. Florida emptied its death row of dozens of condemned killers, including one Bennie Demps.

How could I imagine then that 30 years later I would witness his execution?

After Furman, leading experts on both sides confidently declared the death penalty dead in America. But they greatly underestimated the retributive instincts of the American people. Life in prison simply could not substitute. Immediately after Furman, 35 states scrambled to enact new death penalty statutes. If they could no longer constitutionally leave it to the jury’s absolute discretion to decide life or death, 16 states tried to get the Supreme Court off their backs by going to the opposite extreme: Simply remove all discretion from the jury and make the death sentence mandatory once again—automatic for everyone convicted of first-degree murder. Other states tried to eliminate arbitrariness by specifying in greater detail who did and did not deserve to die—preserving jury discretion but now guiding it by listing aggravating and suggesting mitigating circumstances. These new legislative fixes would take years to test in the courts. For now, across the United States, the death penalty lay frozen.

3

Two Sides to Every Question?

Law school went by quickly. Law, itself, seemed a repository of so much practical wisdom. We took pride in our professors making a difference in public affairs, while in class they seemed capable of artfully turning any argument on its head. Of course the legal profession has always trumpeted professionalism, emphasizing that there are two sides to every question. Any wonder the public has long despised lawyers, even as they sent their own children to get trained in law? This ambivalence goes back to those ancient Sophists who wandered from city to city, paid handsomely to teach the art of rhetoric to the sons of the rich and rising middle class. Success depended on convincing at the law courts and entertaining at the legislative assemblies. Eager to collect their fees without local interference, the Sophists soothed those in power anywhere they found work, supporting each city’s values as right for it. Truth was relative; every question had two