To appreciate the story that Michael Meltsner tells in his absorbing study, Cruel and Unusual: The Supreme Court and Capital Punishment, we have to think back to the status of the death penalty in our society a dozen years ago. In the summer of 1962, some 270 persons in eighteen state jurisdictions were waiting out stays of execution, and each week an average of two more persons entered prison under sentence of death. Nationwide, executions by electrocution, hanging, or lethal gas occurred at the rate of about one a week. Roughly two persons per month would leave "death row" for the general prison regimen because they had been granted executive commutation of sentence, and in an equal number of cases, the appellate courts would intervene and order a new trial. Generally, the death penalty and its constitutionality seemed immune from attack. No statute or court procedure or mode of inflicting the death sentence had ever been declared unconstitutional. No class of offenders had ever been declared constitutionally exempt from the application of a death penalty statute. No death sentence had ever been voided as a violation of due process, equal protection, or on any other ground. About the only way to have the courts nullify a death sentence was to attack the conviction of a capital crime itself by a showing of reversible error. In other words, the courts had never provided anything but individually litigated, piecemeal relief.
There were no indications of anything more sweeping or revolutionary in the wind. Efforts to abolish the death penalty through statutory repeal languished. Out of a total of fifty-two civil jurisdictions in the United States competent to impose the death penalty, only five-Alaska, Hawaii, Maine, Minnesota, and Wisconsin--had totally abolished capital punishment for all crimes. Delaware, the state in which the legislature had most recently abolished the death penalty for murder, had reintroduced it in December 1961, less than four years later. 1 In few states was there any realistic prospect for repeal of capital punishment statutes or for significant statutory alterations affecting persons under death sentence, such as provision for automatic review by state appellate courts, or abolishment of various disabilities attendant upon status as a death row prisoner. 2 Even discretionary sentencing in capital cases had yet to be adopted nationwide. As of March 1962, the law in the District of Columbia was changed to include this provision; in New York, however, death was still the mandatory penalty for first degree murder. In Congress, the first hearing in this century on the federal death penalty was held in 1960, 3 but it led to no further legislative action. The office of the attorney general indicated no discontent with
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Publication information: Book title: The Courts, the Constitution, and Capital Punishment. Contributors: Hugo Adam Bedau - Author. Publisher: Lexington Books. Place of publication: Lexington, MA. Publication year: 1977. Page number: 81.
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