DECADES OF THE DEATH PENALTY: How The Supreme Court Failed

By EDWARD LAZARUS

Tuesday, Jun. 12, 2001

As I write, the federal government is only hours away from its re-entry into the execution business after a hiatus of more than 35 years. As you read this, it will be back in business again.

Individual states have been killing criminals with increasing regularity since the late 1970s. But the decision of the national government to actively rejoin the community of outlaw regimes and human rights abusers who still mete out death sentences merits some reflection.

The Supreme Court's Death Penalty Flip-Flops

The original impetus behind the movement in the 1960s to abolish the death penalty was the insidious correlation between race and death. In those days, the death penalty was mainly a punishment of the South, and the legacy of Jim Crow hung heavily over the system of capital punishment. A stunningly high percentage of rapists sentenced to death were black men convicted of raping white women. The statistics for murderers showed racial disparities as well.

Over time, however, the crusade for death penalty abolition moved beyond its roots in racial justice and became a more generalized moral crusade. The death penalty, it was said, violated our "evolving standards of decency" — whatever that means.

In 1971, in McGautha v. California, the Supreme Court upheld the constitutionality of the death penalty. The system might not be perfect, a majority of Justices agreed, but human institutions never are — and the Constitution does not demand it.

A year later, in Furman v. Georgia, a sharply divided Supreme Court reversed itself. A narrow majority of five struck down every death penalty law in the country, but none of the five could agree with any of the others as to why they were doing so.

Justice Byron White — the crucial fifth vote — was also what now would be called the "weakest link." Basically, he found the death penalty unconstitutional because the states were, in his opinion, too darn squeamish about ordering executions — making death sentences too random to serve any real purpose, such as deterrence.

Thus, while abolitionists celebrated Furman as the death knell for the death penalty, astute observers saw a backlash in the making: Justice White's view could be interpreted to suggest the need for more, not fewer, executions.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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