A Wild Justice

capital punishment

The lethal injection room at San Quentin State Prison in California.

More than 700 people were waiting on death row in 1972 when the Supreme Court issued a decision in Furman v. Georgia, striking down capital punishment in America. The backlash from the states was immediate and extreme. Four years later –in an extremely rare and contentious process—the Court reversed itself.

In his new book “A Wild Justice: The Death and Resurrection of Capital Punishment in America” Evan J. Mandery, a John Jay College of Criminal Justice professor and capital punishment attorney, offers readers a behind-the-scenes look at the Supreme Court's legal maneuvering during that period. Mandery sat down with The Crime Report's managing editor Cara Tabachnick to talk about how personal views often drive Justices' legal approaches, why ending capital punishment will have to be driven from the “bottom” rather than the top, and why the Court is now wary of getting too far ahead of public opinion.

The Crime Report: You have written about capital punishment before. What drew you to explore the story behind the Supreme Court's decisions?

Evan Mandery: (Furman vs. Georgia and Gregg v. Georgia) are the seminal Supreme Court cases focusing on capital punishment. But the real story is that the court reversed itself so quickly. Nobody has ever told what was happening behind the scenes. I also got the right moment in history there. If I had done this earlier, many of the archives wouldn't have been open. Also, the clerks (of the Justices involved in the cases) felt that they had some sense of obligation to history. I was able to speak to almost everyone that I wanted to.

TCR: Much of the decision-making around capital punishment was driven by politics. How, and why, do the personalities of the Court affect the public?

EM: First of all, I think it's important that the Court not be treated as if it's the only institution in the world that isn't driven by personalities. The written history of the Supreme Court is based almost entirely on the published opinions of the justices, which really are very grossly imperfect proxies of what the justices actually think about the cases.

How does it affect America? The answer there is a legal realism behind all the decisions of the Supreme Court. It would be very useful for people to acknowledge and not pretend anything other than that the Justices are nine human beings who make decisions based on their social standing, their moods, their class, their personal background and all of the other things that lead people to have different opinions on different days, instead of treating the Court like some sacrosanct religious organization.

I'm not saying anything new. I'm just demonstrating legal realism in a different way, but almost every lawyer recognizes this. That law isn't given from God. That law is interpreted and interpretation is a subjective experience. Are the justices cognizant of that? Many explicitly are. William Douglas was a very influential legal realist at Yale during his formative years there. Byron White was a legal realist. Some conservative judicial ideologies make the pretense of formalism (which is the opposite of realism). So if you're Hugo Black or Anthony Scalia and you say that the role of Justices is to measure law against the original meaning of the constitution, then you are engaged in a different exercise. You're not judging as a socially situated actor; you are operating according to a formula. The decision to adopt that a (certain) mode of judicial interpretation is a choice that you make as a socially situated actor. Even interpretation of the original meaning of the constitution involves subjective judgment. Most of the Justices acknowledge it. Many acknowledge it explicitly, but some resist it.

TCR: How does this relate to capital punishment rulings?

EM: Central to the decisions in Furman and Gregg was the idea that the public wasn't properly informed about the inconsistencies of the death penalty, and if they were, the punishment wouldn't be allowed. But we know that is not true

TCR: Are capital punishment rulings more emotionally loaded than other cultural issues like abortion, guns or civil rights?

EM: In researching my book, I read a lot about the history of how Roe v. Wade was decided and it's just as razor edge as the death penalty. In fact, Roe was put over a year into the next term. Justice Harry Blackmun's opinion changed during the summer of 1971 in (what was) a really fascinating transformation. This is discussed in (former New York Times Supreme Court Reporter) Linda Greenhouse's book (Becoming Justice Blackmun) Then, if you shoot ahead to Planned Parenthood vs. Casey the face of choice in America looks totally different. There are some issues about which the court has been steadfastly consistent (for example: civil rights). Brown (the 1954 ruling on school segregation) was a 9-0 decision and consequently viewed as unchallengeable in American political discourse. That's a rare exception. Most cases are much more divisive.

TCR: There has been a growing movement among the states to abolish the death penalty. In the last few years New Jersey and Connecticut among others have struck the punishment from their books. Do you think this will influence the Court?

EM: The much more likely way that the death penalty can be abolished is for it to be bottom up rather than top down. A lot of the movement now is I think fueled by concern about executing he innocent. If public opinion is trending towards abolishing the death penalty, I think the Court will take notice. But I'm not sure that's going to happen.

Justice Potter Stewart believed that popular support for the death penalty was very weak and that when the Court came out against the death penalty, public opinion would tumble. There's almost no evidence of that. In fact, the contrary is true. In a study I did with a graduate student, we purposefully misinformed people about the death penalty. We gave one group in our study, an entirely pro-death penalty set of facts, and another group of people in our study, an entirely anti-death penalty set of facts. Basically, no one changed their minds about the death penalty. We found that people become more invested in their views and tend to only take in information that supports their pre-existing core values.

Editors Note: for more on the issue of capital punishment, see the TCR's Crime and Justice News report, “U.S. Execution Cases Since 1976 Originated In 2% of Counties”

TCR: Do you know if any of the justices ever witnessed an execution?

EM: I don't know. I've read a lot. I've never heard it come up. By the time they have gone to the bench, that would be tough for them to do. It would be a political statement they wouldn't be able to make because it would be problematic. I just don't know. I know that Thurgood Marshall worked on a capital case. William Brennan worked on a case where someone could have faced the death penalty. The others had no experience with it

TCR: The make-up of the Court now is very different than it was in the 1960s and 1970s. If a capital punishment case was before the Court now, which way do you think it would be decided?

EM: Well, first I think they probably won't vote to hear the case. I think it's a very close call. The Justices in Furman definitely believed that they have ended the use of death penalty, but they didn't rule that the death penalty was unconstitutional in all cases. They ruled that it was unconstitutional as applied. There are other instances where the court has reversed itself on cases, but it's the rare exception. That's why this story is so interesting, I think.

But now I think there's lots of evidence to suggest that Justice Anthony Kennedy has very serious reservations about the death penalty. He's very much influenced by international public opinion and the United States is an outlier in the international community. My bet as a gambler would be that the Supreme Court wouldn't take the case, but that if it were forced to, it would have come out 5-4 against the constitutionality of capital punishment.

TCR: Why wouldn't it take the case?

EM: Fear of the same backlash. I think the Court is very reluctant to drive public opinion. The Court is not willing to say there is an unequivocal constitutional right in most cases. They are going to take a much more limited, politically powerful position.

TCR: In the book you wrote about how many of the judges changed their minds on the usefulness of capital punishment. Would that effect thinking today?

EM: Definitely. In the death penalty universe, it is widely noted that people who work on the death penalty issue tend to be against it. Would that influence anything? If the Supreme Court has to decide the case today (Justices) Alito, Thomas and Scalia are firmly pro death penalty. Sotomayor, Kagan and Breyer would clearly vote against the death penalty. The question is going to come down to which way Kennedy would vote. If it's speculating about what the Supreme Court would do, it's speculating about Kennedy. Kennedy has written enough for us to know that he is really focused on the international community [which is mostly against capital punishment]. Does that carry today? I don't know. I'm sure they are all aware that justices changed their tone on death penalty. I'm sure they are all students of court history.

TCR: What was your hope in writing this book?

EM: I wanted to help change the way people study, talk about, and write about the Supreme Court. History is messy. There's nobody who has a single take on an issue, there's nobody whose ideology is so strong that (it governs) their view on every single decision that they make in their life. I just wanted to tell the story about how the Supreme Court really works.

Cara Tabachnick is Managing Editor of The Crime Report. She welcomes responses from readers.

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