New Life for the Death Penalty
Four years ago, when the Supreme Court announced its decision in Furman v. Georgia, opponents of the death penalty were cheered to find a majority on the Court willing to strike down death penalty statutes as unconstitutionally "cruel and unusual." Not only did this spare the lives of more than 600 condemned persons; it also put the Court on record for the first time with a holding that the Constitution was not indifferent to the practice of capital punishment. True, the Furman decision did not strike down all possible forms of capital punishment legislation. It left untouched mandatory death penalty laws that leave the court no sentencing discretion for a person convicted of a capital crime; in 1972, a few such laws still remained in force around the country. The Furman ruling also indicated that discretionary death penalty laws with a two-stage trial, in which the court first settles the issue of guilt and then in a second hearing consults a list of "aggravated" and "mitigating" circumstances to arrive at a sentence of death or of fife, might not be unconstitutional. Nevertheless, the prevailing mood of four years ago in abolitionist circles occasionally verged on the euphoric.
However, encouraged by various spokesmen for the Nixon administration, including the president himself, the national backlash against judicially imposed abolition was immediate. As of this past spring, thirty-five states had enacted new death penalty laws, nearly 500 persons were again under sentence of death (Table 9-1), and the Supreme Court was weighing the constitutionality of these new statutes in cases on appeal from five states. The solicitor general, Robert H. Bork, in his role as amicus curiae in support of the death penalty, urged the Court to overturn its Furman ruling. He argued on several grounds, including a claim that the major factual assumptions under which the Court ruled against the death penalty had been shown, in the intervening four years, to be false. Public opinion, he said, now favored capital punishment; new evidence showed that executions were a deterrent to murder. Anthony G. Amsterdam and the NAACP Legal Defense and Educational Fund (LDF), counsel for most of the death penalty petitioners, asked the Court to strike down once and for all all death penalties, mandatory or discretionary, with or without statutory guidelines for sentencing. Their chief argument was that these differences in procedure were "cosmetic"; they only masked the arbitrary and discriminatory infliction of capital punishment. Probably neither side expected the Court to adopt such extreme solutions as overruling Furman or repudiation of all death penalties. But if the Court would not accept either of these extremes, how would it resolve the mixed legacy of Furman?