Cruel and Unusual: The Supreme Court and Capital Punishment

By Michael Meltsner | Go to book overview

13
If the Death Penalty Is to Be Retained at All

LDF represented many of the death-row inmates whose appeals had worked their way to the Supreme Court, but McGautha and Crampton were not among them. Their cases were in the hands of private counsel, but too much was at stake for the Fund to remain silent. An amicus curiae brief filed with the Court reiterated the arguments made in Maxwell and emphasized that by giving the jury few facts and absolute power, standardless and single- verdict jury sentencing encouraged racial discrimination. The full Court, including Justice Blackmun, heard oral argument in the two cases on November 17, 1970; Amsterdam remained in California, but Himmelstein, Lyons, and I shuttled to Washington for the proceedings.

Herman F. Selvin, a graying California advocate with a moving voice and a sharp mind, argued the case for Dennis McGautha. Selvin wandered over the law as if it were his backyard; his eloquence was impressive. But he had not spoken for long when it became apparent from the tone of the Justices' questions that the standards argument was a lost cause.

Arguing for California, Ronald M. George, a state deputy attorney general, emphasized, without being pressed, the points suggested by Harlan and White's ques

-229-

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Cruel and Unusual: The Supreme Court and Capital Punishment
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Preface xi
  • 1 - The Fund 3
  • 2 - The Court 20
  • 3 - The Facts of Death 45
  • 4 - The Strategy Unfolds 60
  • 5 - The Race Factor 73
  • 6 - Moratorium 106
  • 7 - Simon's Frolic 126
  • 8 - Maxwell 149
  • 9 - Boykin 168
  • 10 - Haynsworth, Carswell, and Blackmun 186
  • 11 - Maxwell (Continued) 199
  • 12 - Taking Stock 214
  • 13 - If the Death Penalty Is to Be Retained at All 229
  • 14 - Powell and Rehnquist 253
  • 15 - Closing In 266
  • 16 - Cruel and Unusual 286
  • Index 329
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