At the climax of oral argument in one of the most important criminal cases ever before the United States Supreme Court, Gregg v. Georgia, (1) Justice Potter Stewart asked defense attorney Anthony Amsterdam whether his argument that the death penalty was inherently unconstitutional would also unravel the country's entire criminal justice system.
The argument lasted two days and involved four other related cases (2) Amsterdam and co-counsel from the NAACP Legal Defense Fund (LDF) represented all of the defendants--and, in effect, every death row inmate in the country. Their basic argument was that enforcement of the decision of whether or not to impose a death sentence was inherently arbitrary, in violation of the Eighth and Fourteenth Amendments.
Justice Stewart was considered the swing vote in the case. Four years earlier, in Furman v. Georgia, (3) he joined four colleagues holding unconstitutional all capital procedures then in effect throughout the country. Following Furman, state legislatures amended their states' death penalty procedures to address concerns raised by the Court. Those newly enacted procedures were at issue in Gregg. The Court was finally forced to decide whether the death penalty was unconstitutional across the board.
"Mr. Amsterdam," Justice Stewart pressed, "Doesn't your argument prove too much?" Our entire system of justice is rife with discretion, nullification, grace, and capriciousness. Is it all unconstitutional?
Amsterdam famously responded as follows:
Our argument is essentially that death is different. If you don't
accept the view that for constitutional purposes death is
different, we lose this case...." (4)
Although others had previously argued that the death penalty required unique constitutional protections, Amsterdam is credited with coining the "death is different" phrase and articulating its core rationale. (5) As he explained to the Court during the argument in Jurek v. Texas and Roberts v. Louisiana, two companion cases of Gregg:
Death is final. Death is irremediable. Death is unnullable; it goes
beyond the world.... Death is different because even if exactly the
same discretionary procedures are used to decide issues [in
noncapital sentences] ... the result will be more arbitrary on the
life or death choice. (6)
Amsterdam lost the argument. In Gregg and its companion cases, the Court held that capital punishment was permissible, provided that certain safeguards were in place to ensure against arbitrary and disproportionate executions. (7) However the Court ultimately embraced Amsterdam's position that "death is different" from all other forms of criminal punishment, and ever since Gregg capital defendants have received special constitutional protections (sometimes called "super due process") and financial resources for trial, appellate, and habeas counsel that do not apply to the vast majority of ordinary criminal defendants who are prosecuted in noncapital cases. (8)
The thesis of this Article is that the case law and litigation strategies forged by Amsterdam, LDF, and a generation of capital defense lawyers litigating under the "death is different" rubric since Gregg provide a roadmap toward resolving some of the most intractable criminal constitutional issues outside of the capital context. I am particularly interested in constitutional issues raised by California's so-called "Three Strikes" law, which is widely recognized as the harshest and most broadly applied (noncapital) sentencing scheme in the country. (9)
As a historical matter, Amsterdam says that he and his colleagues at LDF were initially interested in addressing injustice throughout the criminal system, not just the death penalty. They focused on death cases for two reasons. First, Amsterdam says that he and LDF felt morally compelled to represent any death row inmate who requested their help. …