Posted by: Patrick Allen Foster | September 25, 2013

Justice Stewart’s Gamble and the Death Penalty

Last week, NPR’s Fresh Air ran an interview with Evan Mandery (John Jay College, CUNY) talking about his new book, A Wild Justice: The Death and Resurrection of Capital Punishment in America. (Listen to the interview here; transcript here.) Prof. Mandery talks a great deal about the internal deliberations within the Supreme Court leading to the decision in 1972 in Furman v. Georgia — the case that invalidated the death penalty statutes in most of the states and led to a de facto moratorium on capital punishment throughout the country for four years. An excerpt (emphasis added):

MANDERY: So, by June of 1972, there were four votes against the death penalty: William Brennan, whose vote had been secure all along, Thurgood Marshall and William Douglas, whose votes had been secure since the beginning of the term, and Potter Stewart, who told his clerks that he wanted to write a short snapper saying that the death penalty treated people as means to an end, and was hence cruel and unusual.

So, June of 1972, on a Friday afternoon, Potter Stewart tells his clerks that he’s going to see Byron White. And when he comes out two hours later, Stewart’s changed his position. His clerk, Ben Heineman, later the general counsel of GE, says – he emerges, and he’s taken the due process position. And Stewart says that now, he’s going to write that the problem with the death penalty is its application, and the short snapper is gone.

And so what he did was he struck a deal with Byron White, because White made it clear that he wouldn’t vote with an opinion that said that the problem with the death penalty was its morality in all cases. His concern with the death penalty was one of application. In fact, his concern was that it wasn’t used frequently enough to achieve deterrence.

And Stewart made this deal, even though it wasn’t really what he thought, because he thought the death penalty was on the way out, and that if the Supreme Court could nudge the American public in the right direction, that the death penalty would be finished once and for all.

The American public, of course, was not nudged in the direction of abolishing the death penalty. Using White and Stewart’s concurring opinions as guidelines, 37 states enacted new, revised capital punishment statutes. Even Massachusetts, the one state that gave its Electoral College votes to George McGovern in 1972, enacted a new death penalty statute after Furman. When Jimmy Carter, the governor of Georgia, ran for president in 1976, he supported the death penalty in his platform.

Says Mandery:

Stewart made a gamble. When he made this deal with White he believed that the death penalty was on the way out, that the American public didn’t like it and that if there were a signal from the court, that the death penalty was unconstitutional, that that would be the end of it. And, of course, he was spectacularly, colossally wrong. But that’s what he believed and that was the premise of the bet he made in striking that deal with White.

The upshot of Justice Stewart’s gamble was twofold. First, for a Court that looks to “evolving standards of decency” to determine what the Eighth Amendment’s cruel and unusual punishment clause prohibits, the fact that 37 state legislatures vote to reinstate the death penalty, all within a window of only a few years, is rather strong evidence that the public has not evolved to consider capital punishment beyond the pale. Second, when the revised death penalty statues came before the Court again in 1976, in Gregg v. Georgia, Stewart was locked into the framework that he had established in Furman. Mandery talks about Stewart’s “dissatisfaction with himself that he took this position that he did in 1972, because Stewart in 1976, can’t very well say oh, I didn’t really mean that the problem was with the death penalty was its application. What I really meant was that I thought it was immoral in all cases and I just said what I said to get someone else’s vote.”

I’ve read that Stewart (who was appointed to the Court by Eisenhower in 1958) was on Nixon’s shortlist for Chief Justice, but Stewart asked the President to remove his name from consideration because he did not want to go through the Senate confirmation process again. Also, the publisher’s blurb for Manderly’s book indicates that Manderly draws upon “never-before-published original source detail,” but it’s not clear what this source material is. Justice Stwart’s Wikipedia page indicates that Stewart gave his papers to Yale and that “files concerning Stewart’s service were closed to researchers until all the justices with whom Stewart served had left the court.” (Stewart retired in 1981.) So, Stewart’s papers may not have become available to scholars until John Paul Stevens retired in 2010, and Manderly may be drawing upon Stewart’s papers for some of his research.

There’s lots of other good stuff in the interview, including discussion of the strategies of the litigators and advocates who brought this series of death penalty cases before the Burger Court. See also this post at Sentencing Law and Policy.

I may have to buy Mandery’s book.

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