Death penalty ban: 'A Wild Justice' author Evan Mandery explains how the US adopted, and then discarded, it

Today much of the debate over the death penalty in the US centers on whether it's cruel and unusual. A series of botched executions in recent weeks has revitalized critics who continue to push for a ban.

More than four decades ago, they got one. Legal disputes halted executions in the late 1960s, and no one was executed from 1972 to 1976 thanks to a landmark Supreme Court decision. The ruling was later overturned, but the thinking behind it still reverberates through our rights today even as men and women are regularly killed in the name of the law.

Evan Mandery, a law professor at John Jay College of Criminal Justice, tells the story of the evolution of the law in his fascinating new book A Wild Justice: The Death and Resurrection of Capital Punishment in America.

In an interview, I asked Mandery to talk about what we can learn today from the legal battles of the 1960s, 1970s, and 1980s.

Q: In the early 1960s, hardly anyone would have argued that the death penalty was cruel and unusual punishment, and the idea of banning it seemed outlandish to many people. After all, the founding fathers clearly didn't intend to ban execution.

But then things suddenly changed at the Supreme Court. What happened?

It's really Justice Arthur Goldberg and his law clerk Alan Dershowitz, who advanced a revolutionary view of interpreting the Constitution. They said it is an evolving document, and what's cruel and unusual needs to be measured by the standards of the time.

That's a transformative idea. The idea that the Constitution needs to be measured by contemporary standards may not dominate the court today but certainly dominates legal scholarship, and it's profoundly important for how abortion rights have been determined and even gay marriage.

Q: The issue of innocence isn't a major part of the story you tell. Was there much concern at that time over whether innocent people were being executed?

It wasn't a central focus, and I don't believe it was a driver of public opinion at the time.

One thing that shifted since then is the availability of DNA evidence – DNA lends itself to pretty conclusive exonerations. We don't have a lot of examples of people who were executed who were innocent, but we have examples of people who were on death row who were exonerated.

Q: The Supreme Court reinstated the death penalty in 1976. Do you think the court was pressured by the public reaction to its earlier decision?

People will only tolerate the Supreme Court doing so much. The court thought that they expended some institutional capital, perhaps unnecessarily.

Q: You focus on another case that – like Justice Goldberg – has been largely forgotten by history. This is the ruling in the case of McCleskey vs. Kemp, in which the court majority refused to heed statistics that suggested a pattern of racism against blacks in the use of the death penalty.

Why is this case vital to the story of the legality of the death penalty?

It was potentially the most important decision in history of Supreme Court other than Plessy vs. Ferguson and Brown vs. Board of Education.
Justice Lewis Powell wrote the majority opinion in the 5-4 ruling, although at the end of his life he said he opposes the death penalty and regrets his decision. It's a challenge based solely on the issue of racism: The court said you needed an individualized showing of racism to invalidate the death penalty, which is basically impossible.

If one vote in that decision had gone the other way, it would have fundamentally transformed the entire justice system in America. The Supreme Court would have been saying that you couldn't use a punishment if there were racially disparate patterns.

How would the court have restricted that just to the death penalty? I believe that's why the court didn't do that, that they thought the wheels would fall off the justice system.

Q: This would have changed things for many prisoners compared to the fairly few on death row, right?

I don't like the death penalty, but it's a trivial phenomenon in the justice system as a whole, and it's rarely imposed, even for people who get sentenced to die.

If racism in the administration of justice make you think that the death penalty is unconstitutional, it should give you serious pause about every other long prison sentence. There's overwhelming evidence that the criminal justice system is extremely arbitrary and racist.

Q: What do you think are some reasons to give death penalty proponents more hope about the future?

The court's approach has been to Swiss-cheese the death penalty, make it harder and harder to impose it. But they haven't taken on the central issue. Forty years of this history must give proponents some hope.

Q: How about some reasons for opponents to feel hopeful?

I believe there are five votes to overturn the death penalty, including Justice Kennedy, and it's overwhelmingly likely that he'd vote to end the death penalty if abolitionists could get a case to the Supreme Court.

There are three arguments that could win. One is the problems with the executions, but that's probably not a likely winner. A second argument is that the court could rely on the direction of change if more states get rid of the death penalty.

But the best argument is that the death penalty is not and cannot be applied in a non-racist, non-arbitrary manner, and that violates the court's own decision.

Q: What is the big lesson of the story you tell in your book?

When the NAACP Legal Defense and Educational Fund began working on this, nobody thought they'd make the death penalty unconstitutional. It's been an imperfect success, but it's an extraordinary accomplishment that hasn't been given its due.

With the right leadership and the right cause, social change through constitutional litigation is possible.

Randy Dotinga, a Monitor contributor, is president of the American Society of Journalists and Authors.