Author Interviews
12:06 pm
Thu September 19, 2013

Years After Historic Ruling, Execution Still A 'Random' Justice

Originally published on Thu September 19, 2013 1:44 pm

In the mid-1970s, Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the United States. But the decision provoked a strong backlash among those who favored the death penalty, and within four years the high court reversed course and issued a set of rulings that would permit the resumption of executions.

Evan Mandery, a professor at the John Jay College of Criminal Justice and a former capital defense attorney, has written a new account of the tumultuous legal and political battles over the death penalty. Mandery is sympathetic to those who tried to outlaw capital punishment, but his account focuses on attorneys for both sides in the battle, as well as the views and deliberations of the justices who decided the cases. His book is called A Wild Justice: The Death and Resurrection of Capital Punishment in America.

He tells Fresh Air's Dave Davies about how the Supreme Court decisions of the '70s changed capital punishment.


Interview Highlights

On how states' death penalty regulations changed after the '72 decision

The states go in two directions. One direction that they go [in] is to make the death penalty mandatory for all murderers. That's not arbitrary; they're giving the same penalty to everybody for the same offense.

The other direction the states go [in] is attempt to curtail discretion, and they do two big things: They split trials into a guilt phase and a sentencing phase; and they identify a set of aggravating factors, things that ostensibly make certain murders worse than others, like killing a police officer or being a prisoner who has escaped from prison at the time of the crime.

On how the death penalty is used today

The death penalty is basically random, even among people who are sentenced to die. When I teach about this ... students are shocked to learn that of people who are sentenced to die, you only have a 10 percent chance of being actually executed. And figuring out who among those are the ones who actually are executed, it's just basically random. So I don't think anybody can say there's any predictability in capital punishment. Is it marginally less random than it was in 1972? I think that's where the academic dispute is. I can point you to scholars who think that the court's decision did ameliorate things a tiny bit. And I can point you to many more scholars who think the court's decision did nothing.

On choosing between the death penalty and a life sentence

I believe that every argument against the death penalty is also an argument against long prison sentences. The death penalty is racist; the criminal justice system and the imposition of long prison sentences is more racist. There's a question about whether the death penalty deters; there's a substantial question about whether long sentences deter. There's a question about whether the death penalty is cost-effective; so too, there's a tremendous question of whether long prison sentences are cost-effective.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. In the mid-1970s, the state of Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court had shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the U.S.

But the decision provoked a strong backlash among those who favored the death penalty, and within four years, the high court reversed course and issued a set of rulings that would permit the resumption of executions. Our guest Evan Mandery is a professor at the John Jay College of Criminal Justice and a former capital defense attorney who's written a new account of those tumultuous legal and political battles over the death penalty.

Mandery sides with those who tried to outlaw capital punishment. His account focuses on attorneys for both sides in the battle and the views and deliberations of the justices who decided the cases. His book is called "A Wild Justice: The Death and Resurrection of Capital Punishment in America." He spoke with FRESH AIR contributor Dave Davies.

DAVE DAVIES, HOST:

Evan Mandery, welcome to FRESH AIR. You know, you write in this book that the Supreme Court had addressed the death penalty only six times in its first 175 years. And then Justice Arthur Goldberg and a young clerk named Alan Dershowitz decided to do something about this. I guess this was in the '60s. Tell us how they proceeded.

EVAN MANDERY: Well, in 1963, when my book opens, there's basically nobody in the United States other than Goldberg and Dershowitz who thinks that the death penalty might be unconstitutional. This is unfathomable to us today, right. Regardless of whether you support the death penalty or not, you understand that that issue is debatable.

But in '63, no one had this position, and Goldberg proposed to take a case, to grant certiorari in a case and raise the constitutionality of the death penalty, even though it hadn't been raised by the litigants. It was an act without precedent in American judicial history.

DAVIES: And what did he do?

MANDERY: Well, first, he had Dershowitz research the issue, and Alan Dershowitz spent the summer - Dershowitz was particularly concerned with the inequality in the use of capital punishment, and he spent the summer researching racism in the application of capital punishment, particularly in the South. And he wrote a memorandum, and he wrote a legal argument which ultimately became the basis for the NAACP Legal Defense Fund's challenge that was successful much later on.

DAVIES: Right, but they - in the end, they did not grant certiorari, which is to say agree to consider a case. They didn't do that. I mean, it stayed behind the scenes. They wrote a memorandum and never - nothing came of it, right?

MANDERY: Well, something came of it. I mean, it's a very interesting dynamic. Earl Warren was chief justice at the time, and, of course, Warren is very well known as being a very liberal justice, and the justice that oversaw Brown versus Board of Education and Miranda and many expansions of civil liberties.

But when Goldberg advanced the idea of taking up this issue, Warren didn't want to do it. Warren thought it was more than the public would tolerate. Now, something did happen. What they agreed to was for Justice Goldberg to publish a dissent from the court's denial of cert, a very odd thing, but Goldberg publicly disagreed with the court's refusal to hear the case, and that also is an act without precedent in court history, to my knowledge.

DAVIES: And what's interesting about this, as you explain it in the book, is that one of the ways that new legal principals get established and considered is that the legal academic world takes them up, people write articles, there is debate, and then eventually, they find their way into the courts. And in the course of explaining this, you have a chapter called "The Most Important Law Firm in America." This was the NAACP's Legal Defense Fund.

It had a lot of issues it was handling, and it chose to take on the death penalty. Explain what they did.

MANDERY: They took on a challenge that I analogize to trying to land man on the moon. It was an insurmountable legal obstacle to try to get this done. And they, the key lawyers, a man named Anthony Amsterdam, who is still alive, a professor at NYU law school, and Michael Meltsner, who was number two there, but was the principal proponent of LDF, the Legal Defense Fund, taking on this issue.

They decided - LDF had historically represented blacks, but they decided to represent all people who faced the death penalty in the United States, and it was a massive transformation of their mission - somewhat controversial, but clearly noble.

DAVIES: And what that meant, then, was not taking a case to the steps of the Supreme Court, but fighting dozens and dozens of legal battles in state courts all over the country.

MANDERY: Right. A strategy evolved. It's probably a mistake to say that it was created at any particular moment, but a strategy evolved to try to - Professor Meltsner's words are - throw sand in the machine. What they wanted to do was bullocks up every death penalty case in the United States to the point where no one was being executed, and they succeeded. It's an absolutely unbelievable accomplishment - whatever your view on the death penalty - that they did something so hard and succeeded for so long.

There was basically a 10-year period in which no one in the United States was executed, and Amsterdam's thought was that the justices of the Supreme Court would be so loathe to begin executing people after there was such a backlog of people on death row, that they would never be able to pull the trigger.

DAVIES: Right. And maybe you should just talk a little bit about this guy Tony Amsterdam, because he becomes quite a figure in this drama.

MANDERY: Right. I've never encountered anybody like him in my life, and I interviewed incredible people, people I never would have had the chance to meet in my life, David Kendall, who was President Clinton's lawyer. Professor Meltsner is an extraordinary person. Jack Greenberg, who was the head of the NAACP Legal Defense Fund, other - tons of other lawyers who worked at LDF, and Professor Dershowitz.

And they all identify Anthony Amsterdam as the most impressive lawyer they've ever met in their life, and he is. I've never seen somebody who has a brain who works like this, basically a photographic memory and indomitable spirit and indefatigable work ethic.

DAVIES: Right. An innovative thinker, and then someone who seems to be able to work all night.

MANDERY: He does. They all joke that there was a clone of him, that one would work through the night while the other slept, and that he'd get up in the morning, and the other one would take over.

DAVIES: So, this movement takes root, and executions stop, as motions are filed and cases grind through appellate courts everywhere. And it's not until 1972 that the Supreme Court really begins to really address the issue. And by then, it's not the Earl Warren court, really, anymore. Tell us what kind of court took this on in 1972.

MANDERY: Well, it's Warren Burger's court by that time, but it's important to take a step back. The court did address some other issues. They denied - they ruled against - they upheld the constitutionality of the death penalty in two critical cases, one a case from Arkansas by the appeal of a man named William Maxwell and a case called McArthur(ph) versus California. And they upheld the death penalty in both instances.

When the court took on Furman versus Georgia, which is the case that the Legal Defense Fund won in 1972, the summer before the justices left, they all believed that the case would be an eight-to-one decision upholding the constitutionality of capital punishment. It was only William Brennan who thought that he would vote against the death penalty.

It is - the odds against this victory were supremely improbable. This victory was supremely improbable, even the summer before the court decided the case.

DAVIES: Right. Warren Burger was the chief justice. He was appointed by Nixon, as were, I think, four of the justices on the court at that point.

MANDERY: That's right. And, you know, some of the justices of the court at this time are different than the men we come to know them as. So Warren Burger was a consistent supporter of capital punishment. But Harry Blackmun was not. And in 1985, Harry Blackmun dissented from a case and said that he would no longer tinker with the machinery of death. He was an opponent of capital punishment at the end of his career.

But in 1972, he was very closely allied with Warren Burger, and he voted to uphold the death penalty.

DAVIES: If you're just joining us, our guest is Evan Mandery. He is a professor at the John Jay College of Criminal Justice in New York. He's also a former capital defense attorney. He's written an interesting account of the Supreme Court's dealings with the death penalty in the 1970s. It's called "A Wild Justice."

So let's talk about the case that the court considered in 1972, a dramatic event in American jurisprudence. Tell us - this is - it's Furman versus Georgia, right? Tell us about the case.

MANDERY: Right. Furman was a burglar whose crime went wrong, and he ended up shooting the owner of the house that he broke into. And the court took the case, along with three others, in 1972 to state its position on the constitutionality of capital punishment for murder and for rape.

DAVIES: Right. And Tony Amsterdam of the Legal Defense Fund of the NAACP made the argument. What were the arguments that were presented here that the death penalty was unconstitutional?

MANDERY: Well, the - in 1972, the Legal Defense Fund, the NAACP Legal Defense Fund was arguing that the death penalty violated the Eighth Amendment cruel and - ban against cruel and unusual punishments, and it was really the last argument left in its holster. Every other argument they had made to that point had been a procedural argument.

And this was the one they saved for last, because they thought it was the least likely to win. And the reason that it was unlikely to win is that the Constitution explicitly mentions the death penalty in five different places. And the arguments on the other side, by Ronald George of California, Dorothy Beasley of Georgia, among others, was: A, that the Constitution referenced capital punishment, so it had to be constitutional, and B, that it was a matter that was best left to the states.

DAVIES: Right. And so they argued that what is cruel and unusual in 1972 might not be what's cruel and unusual in 1787, and...

MANDERY: Right, but that was - I'm sorry. That was really Goldberg who fomented that revolution. It was Goldberg who advanced the argument that standards of decency and the Constitution as a text evolved, and that's why, to my mind, Goldberg is the most overlooked justice in American history. It's - everyone, whether you agree with this principle or not, accepts as a legitimate matter of discourse the idea that the Constitution is an evolving document. Nobody took that position in the early 1960s, before Goldberg.

DAVIES: Right. And we should not that Goldberg was on the Supreme Court. He resigned to take an appointment as a United Nations ambassador, right, which is why he was not on the court when these things were considered.

MANDERY: Right. His tenure was only three years, and by all accounts, he regretted leaving the court.

DAVIES: Right. OK. So, they have to make the case to these justices, four of them appointed by President Nixon, that now the death penalty, in 1972, was cruel and unusual. What was the argument?

MANDERY: Well, the argument was that standards of decency evolved, and they appealed to standards of decency in other countries, and Amsterdam's epiphany was that even though states had capital punishment, he argued that most people only tolerated the death penalty because it was infrequently used. And this, he said, suggested that at bottom, the American people didn't tolerate capital punishment. And it was a brilliant argument.

DAVIES: In other words, everybody knows that although it's legal, it will be imposed in very, very few cases. So even though polls seem to show that Americans - although not unanimously - predominately supported the death penalty, they didn't really mean it, because they knew juries wouldn't impose it?

MANDERY: Right. They liked the threat of capital punishment. And, of course, LDF argued that what was happening was it was being used against a select few people, overwhelming poor and overwhelming - disproportionately minority.

DAVIES: And then there was the argument what was cruel and - what was tolerable to community standards back in the 18th century might have included, you know, public whipping and hanging, are no longer tolerated. So it seemed that there had been evolution of some kind here, right?

MANDERY: Right. And what's interesting - what was revealing to me is that the argument that LDF had very little to do with the way the court actually decided the case. So that narrative that standards of decency evolved really wasn't the basis, wasn't what was going on internally in the minds of the justices who decided the cases. And that's what revelatory about it.

And, to me, my investment in my book is to try and realistically portray how a case of this magnitude is decided, not just about things that justices say in public opinions, but as an interactive process between lawyers and judges. And the clerks play a very major role in my story, too. Behind the scenes, LDF's argument didn't have much to do with what was going on.

DAVIES: Right. And before we get to how the court crafted the decision - which had a lot to do with subsequent events - what was the argument of Georgia and others who defended the death penalty? What did they say?

MANDERY: Well - and Ronald George said this to me in an interview, he still feels this way today. Even though he doesn't like the death penalty, he thinks that the judgment of the people has a right to be defended, and that the states have province to decide certain matters for themselves, certain moral issues for themselves.

DAVIES: Right. So if evolving community standards are relevant, one expression of community standards is when your state legislators say, yes, for certain crimes, you may be put to death.

MANDERY: Right. And Texas may have a different standard of decency than Massachusetts does, and the Constitution is fine with that.

DAVIES: We're speaking with Evan Mandery. He's a professor at the John Jay College of Criminal Justice in New York City. His new book is called "A Wild Justice." We'll talk more after a short break. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, our guest is Evan Mandery. He's a professor at the John Jay College of Criminal Justice in New York. He's also a former capital defense attorney. He's written a new book describing the Supreme Court's consideration of the death penalty, both striking it down and then reaffirming it within a few years in the 1970s. It's called "A Wild Justice."

So when the justices consider this in 1972, and this remarkable decision results, in effect, striking down the death penalty, the way the decision was crafted had a lot to do with its impact. Tell us what happened.

MANDERY: This case was unusual in so many respects, and one way it was unusual is that Warren Burger, at one point, declared himself to be in the majority. It was never 100 percent clear who had voted on which side, and, in fact, Byron White's vote was ambiguous most of the term, and this complicated the case substantially.

DAVIES: And when we say vote, we're talking about in conferences, among the justices, right.

MANDERY: Correct.

DAVIES: They caucus. They decide where people are, and then assign opinions, depending on where the majority appears to rest.

MANDERY: Warren Burger also suggested that each justice write his own individual opinion, and, in fact, there were nine separate opinions, ultimately, in the case. And he also asked that the case be treated with complete secrecy, as Brown had been. And this...

DAVIES: Brown versus Board of Education, the desegregation case. Yeah.

MANDERY: Brown versus Board of Education. And what - and the practical consequence of this was that it made it very difficult for a majority rationale to coalesce, and the justices operated essentially independently for almost the entire term, up until the second weekend of June, when Potter Stewart very dramatically paid a visit to Byron White.

DAVIES: And what happened there?

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.

DAVIES: So, Stewart was going to say it's cruel and unusual. It's out of here. Right.

MANDERY: That's right, and the four Nixon appointees were on the other side, and the question was Byron White. And there's this surreal moment at a conference where they're trying to figure out who's on which side, and it all depends who's writing a majority and who's writing a dissent, and it all depends the way - on what White's going, which direction White's going, and he doesn't say a word.

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.

DAVIES: So when this shocking decision is announced to the nation, what is the court telling us? What was the court telling everyone about the death penalty?

MANDERY: Well, good question, and different people choose to hear different things. But - so there's no clear message, right. There are five separate majority opinions, and even the liberals don't really agree with much among themselves. But most people take - some for strategic reasons, and some honestly - take the court's decision to be about the Stewart-White opinions, which are focused on the arbitrariness of capital punishment. And states that support capital punishment - overwhelmingly in the South - take this as an invitation to rewrite their statutes to fix the arbitrariness problem.

DAVIES: All right. So, in other words, the court seemed to be saying it isn't that the death penalty's unconstitutional in every circumstance, but the way it's practiced and applied, it's arbitrary and therefore unconstitutional, cruel and unusual.

MANDERY: Exactly, exactly. The fact that some people, some types of people get it more than others is the problem. The problem is not the death penalty itself.

DAVIES: All right. Before we get to how the states reacted by changing their laws, because that's a big part of this story, overall, how did the nation react to this decision? I mean, this court ruling against the death penalty?

MANDERY: Well, it depends who you are, but overwhelmingly, Americans were angry, and there was a very quick backlash against this decision. And I don't think it's just about support for capital punishment. I think that Furman versus Georgia has to be viewed as part and parcel of a set of court decisions, including decisions on busing and Roe v. Wade that many people interpreted as invading the province of states' rights and individual rights.

GROSS: Evan Mandery will continue his interview with FRESH AIR contributor Dave Davies in the second half of the show. Mandery is the author of the new book "A Wild Justice: The Death and Resurrection of Capital Punishment In America." I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to Dave Davies' interview with Evan Mandery, the author of the new book "A Wild Justice: The Death and Resurrection of Capital Punishment in America." It's about the 1972 Supreme Court decision that struck down Georgia's death penalty law, effectively ending executions in the U.S., and how four years later, the court reversed itself after public backlash against the 1972 decision.

DAVIES: So there was a lot of anger at the court. I mean, you know, the depth of the backlash can be seen - as you note - in the fact that Massachusetts, the only state that voted for George McGovern in 1972, enacted a new death penalty statute, vetoed by the governor, but the Legislature enacted it. Jimmy Carter running for president in 1976 favors the death penalty. So there was a really strong tide here.

MANDERY: Right. I mean the only way to make sense of the Massachusetts example is this supreme dissatisfaction with busing. There's this visceral reaction to the court's busing decision. And the problem is that the desegregation decisions are not vulnerable. Roe v. Wade is not vulnerable, but Furman v. Georgia is vulnerable because White made - because Stewart made the deal with White and states believed that they could fix the problem that the court had identified with capital punishment.

DAVIES: All right. So if the court says the death penalty, as it's practiced in the United States, is arbitrary and capricious, the states set about to remedy that with a whole new series of laws. Give us some ways in which the states reacted.

MANDERY: Right. So the states go in two directions. One direction that they go is to make the death penalty mandatory for all murderers, right. That's not arbitrary. They're giving the same penalty to everybody for the same offense. The other direction that the states go is they attempt to curtail discretion and they do two big things; they split trials into a guilt phase and a sentencing phase and they identify a set of aggravating factors, things that make - ostensibly make - certain murderers worse than others. Like killing a police officer or being a prisoner who has escaped from prison at the time of the crime.

DAVIES: Right. And the interesting thing about this is you notice that there were justices, when they were considering this opinion, you know, striking down the death penalty, that said, you know, if we do it this way, if we say it's the way it's administered, we are going to be inviting states to pass mandatory death sentences and some did.

MANDERY: Right. But Stewart believed when he made - 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.

DAVIES: Yeah. So rather than nudging the nation in a direction, they provoked a reaction to it.

MANDERY: That's right. He nudged it in the opposite direction. And I mean I can't emphasize this enough. This principle that a non-arbitrary death penalty is constitutional, right, this idea that the problem with capital punishment in America is the way it's implemented was arrived at in the course of a weekend by two justices, one of whom didn't actually believe that really was the problem with capital punishment.

DAVIES: So let's move forward a few years. In 1976, right, the Supreme Court agrees to reconsider this question, after states have enacted a bunch of new death penalty statutes designed to remedy the flaws they perceived in the 1972 Supreme Court decision. The Supreme Court agrees to consider death penalty statutes in five states - Georgia, North Carolina, Florida, Louisiana, Texas. There's a (unintelligible), but give us a sense of some of the range of provisions in these state laws that the court had agreed to take on.

MANDERY: Well, the Supreme Court picks those five cases to get at the two - the full range of approaches, and there are two that they divide into two principal categories: the mandatory statutes, some states made it mandatory for murder and rape, and that guided discretion statutes. Every state that had a guided discretion statute used some combination of split trials and aggravating factors as a way of trying to introduce rationality.

DAVIES: Right. And the case which gives this decision its name, Greg versus Georgia, was which kind of the law?

MANDERY: Right. Georgia was a guided discretion statute. And today, more or less, every state that has the death penalty, the statute resembles Georgia's from 1976.

DAVIES: Now, it's interesting that in the arguments against the death penalty, again, we find Tony Amsterdam, this brilliant lawyer from the NAACP Legal Defense Fund and it's again his turn to try and persuade the court. And you note that in the 1972 argument everyone regarded his performance as just brilliant. Tell us the approach he took in trying to persuade the justices this time.

MANDERY: Well, he stuck to his guns, more or less. He continued to believe and he continued to argue that the death penalty was unconstitutional in all cases. And, you know, from a lawyer's standpoint, look at this incredibly problematic fact that Amsterdam and LDF had to deal with the 1976. They're saying the standard is evolving standards of decency, and here, between 1972 and 1976, 37 states have passed new death penalty laws. So there's the most relevant, what, how could you imagine a more relevant evidence of contemporary standards of decency than what states have done over the past four years? So it's a very, very tough road for him to hoe to say that the American public doesn't support capital punishment.

DAVIES: Right. And so how does he make that case?

MANDERY: Well, he argues - he offers many of the same arguments that he made in 1972, and he doesn't persuade the court. And the justices, many of the justices, and they were overwhelmingly - it wasn't just the lawyer public that I mentioned before, the justices thought he had delivered the most magnificent arguments in 1972. But in 1976, they think that his argument was tone deaf. Now I don't think that that's a reflection on Professor Amsterdam. I think that's just as much a reflection on the justices' own personal conflict. In Potter Stewart's case, his own 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. But, you know, Amsterdam's argument doesn't win the day.

DAVIES: All right. Now this time, his principal adversary was Robert Bork. President Gerald Ford's solicitor general, later famous for a controversial appointment to the Supreme Court. What did Bork argue to the court?

MANDERY: Well, Bork's a superstar. And what Bork successfully did was to brand Amsterdam and LDF as a leftist fringe. And the extension - look, the arbitrariness isn't just a problem with capital punishment. I would argue that arbitrariness is a greater problem for people who face finite prison sentences than it is for people who face the death penalty. And I, you know, when you mentioned my history working on a death penalty case, I was a litigator at a big firm called Shearman & Sterling. And I represented someone pro bono. People on death row get these great high-powered white-shoe law firms to represent them. People facing 12 year prison sentences don't get the same quality of representation.

And what Bork said is it's not just a problem, arbitrariness isn't just a problem with the death penalty, it's a problem with the American criminal justice system. So if Amsterdam and LDF's position is correct, what you've done is destabilized the entire American criminal justice system.

DAVIES: Our guest is Evan Mandery. He is a professor at the John Jay College of Criminal Justice in New York. His book is called "A Wild Justice: The Death and Resurrection of Capital Punishment in America." And we'll continue our conversation after a break.

This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, our guest is Evan Mandery. He's a professor at the John Jay College of Criminal Justice in New York. He's also a former capital defense attorney. He's written a new book describing the Supreme Court's consideration of the death penalty, both striking it down and then reaffirming it within a few years in the 1970s. It's called "A Wild Justice."

So in 1976, the court considers these five state death penalty statutes, just four years after they had struck down the death penalty. What in effect - how in effect did the court rule? What did they tell us about the death penalty in 1976?

MANDERY: The court said that a mandatory death penalty is unconstitutional, but it said that he guided discretion statute, such as Georgia's, is constitutional. And today, in the United States, every state that has the death penalty has some version of that Georgia law, where there are split trials, split-face trials. There's first the determination made about guilt, and then a determination of sentence, and there are also aggravating circumstances.

DAVIES: I mean it's a judgment to be made after the fact, but do you think Amsterdam gave up the chance to get a compromise to get more here?

MANDERY: I think Monday morning quarterbacking in this business is - in this area is a very, very dodgy business and I'm reluctant to do it.

DAVIES: OK.

MANDERY: I'll say one thing that I do think history suggests. There was one case, the Texas case. So when Powell, Stewart and Stevens reached their agreement and decide that the mandatory death penalty is unconstitutional but the guided discretion statutes are not, it's not clear whether Texas' statutes should be grouped as a mandatory statute or as a guided discretion statute, because it really doesn't offer very much guidance. It just seems to just get everybody executed. And I think that if LDF had engaged that point at greater length, that they - there's a chance that Powell, Stewart and Stevens might have grouped it as a mandatory case. And since Texas is far and away the most vigorous death penalty state in the United States, that might've made a difference.

DAVIES: Right. And we can remind listeners that when this case was done, there were actually five different state laws under consideration. And Texas, if I recall correctly, had a provision in which a death penalty jury had to ask a set of three questions, which, if answered in the affirmative, would qualify the defendant for the death penalty. And in the view of the LDF, the opponents of the death penalty, they really were kind of meaningless questions. They could be answered about any defendant.

MANDERY: Right. So one of the questions was: did the murderer act with deliberate indifference to human life? I mean it's very hard to imagine a murderer who doesn't. So the question was a tautology.

DAVIES: Right. You know, and since you mentioned it - I was going to bring this up - but I mean Texas has executed far more defendants than other states. Is that because of the way that its death penalty statute is structured?

MANDERY: I think it's that's - it's too much to say that. But it doesn't help that they had it's very liberal death penalty provision.

DAVIES: And it's interesting that Tony Amsterdam, the attorney who was at the heart of all of these cases, thereafter set about writing a handbook for how attorneys might deal with death penalty cases in the future. Kind of looking at the guidance the court had given. And you say it was remarkably prescient in terms of predicting, you know, future rulings and statutory developments on the death penalty. I mean this is a big subject. But in general, how have the standards for applying the death penalty evolved over the years?

MANDERY: After losing a case that undid the greatest victory of his career, he sat down and he developed a roadmap for what was going to come next, and he basically predicted everything correctly. Today, we no longer execute. He foretold that the court might be receptive to arguments against the death penalty for certain classes of criminals. And today we don't execute people who committed the crime of murder under the age of 18. There's no longer the death penalty for rape. There's no longer the death penalty for certain types of felony murderers. And we no longer have the death penalty for people who are insane at the time of their would-be execution.

DAVIES: But executions have continued, right? How many?

MANDERY: And approximately 1,300 since 1976.

DAVIES: And, you know, if you look at the decisions of the 1970s, in effect saying that the death penalty as applied was arbitrary and capricious, and now that states have different procedures for it, I mean the penalty phase of the trial is separated from the guilt phase of the trial. And, you know, there are requirements for appellate review and certain categories of defendants, which are excluded. Is the death penalty anymore fairly or humanely practiced today than it was in the 1960s?

MANDERY: I don't know what fairness means in this context. Is it fair in the sense that similarly situated people receive similar sentences? It's not. The death penalty is basically random, even among people who are sentenced to die. When I teach about this - I teach about this all the time at John Jay - people are - students are shocked to learn that even among people who are sentenced to die, you only have a 10 percent chance of being actually executed. And figuring out who among those are the ones who actually are executed is, it's just basically random. So I don't think anybody can say that there's any predictability in capital punishment. Is it marginally less random than it was in 1972? I think that's where the academic dispute is. I can point you to scholars who think that the court's decision did - ameliorated things a tiny bit and I could point you to many more scholars who think that the court's decisions did nothing.

DAVIES: One of the other issues that came up in the course of some of these court cases was whether the death penalty effectively offers a deterrent at all. Is there any scholarly agreement on that?

MANDERY: There's not. My personal favorite chapter in my books is a chapter in which I tell the story of the race to prove whether the death penalty deters or not. And I have a seven page footnote talking about who's right in this debate. And it's fascinating. Basically, people come down on different sides of the issue based on their identity. Economists think that the death penalty deters; criminologists think that they don't.

And the economist's worldview is that people respond to incentives. Criminologist's worldview is that the sort of people who are incline d to crime are not responsive to incentives in the same way that, you know, ordinary people are. My - and I'm going to say this very tentatively - I identify a scholar whose work I think is terrific, Joanna Shepherd. By the way, she's against the death penalty. And what she says is that a frequently used death penalty deters.

So that if you execute enough people that you can actually begin to achieve some deterrence, it also - the death penalty is also, at the same time, inciting people to violence. Right? So these two things can happen at the same time and that if you execute enough people, the deterrence that you achieve will overpower this brutalization effect. But of course, the question of whether the death penalty deters doesn't matter to many people.

If you have an retributive view in favor of the death penalty, you believe in an eye for an eye, you don't really care whether the death penalty deters, and conversely, you may think that the death penalty is a violation of human rights and would oppose it even if you could be persuaded that it did deter.

DAVIES: In the argument in 1976 over whether the death penalty would be upheld in certain cases, when Tony Amsterdam and the legal - the NAAC legal defense fund argued that the way the death penalty actually worked was that there was an arbitrariness, you know, to who actually was executed or who actually got the death sentence and who didn't. One of the things the justices said was, well, what you're really objecting to is that so many people who actually qualify for the death penalty don't get it.

You're objecting to mercy. What was their point and how did Amsterdam answer it?

MANDERY: Right. Thanks for asking this question. It's a great question. I mean, if you support the jury system, jury verdicts are going to be irrational. And one point of the jury system is to allow the jury to grant mercy for any reason or no reason at all. And so if the death penalty's unpredictable the argument goes then this is just an example of the jury applying its mercy power.

And the fact that so few people - that the sentencing, death sentencing rates are so low, suggests that the jury is jut doing its job. And now the question is, if you oppose the jury system in the death penalty context - and Amsterdam says that he does not oppose; he frames it differently - but if you oppose the jury system in the death penalty context then why don't you oppose it in other contexts?

And in fact, I think this is the hard question for liberals and abolitionists to answer, because I believe that every argument against the death penalty is also an argument against long prison sentences. The death penalty is racist. The criminal justice system and the imposition of long prison sentences is more racist. There's a question about whether the death penalty deters. There is a substantial question about whether long prison sentences deter.

There's a question about whether the death penalty is cost effective. So, too, there's a tremendous question about whether long prison sentences are cost effective. So I don't know, other than to just say, well, this is the line. We're only concerned with these questions when the punishment is death as opposed to merely 30 years in prison. I don't know those questions - how one could evade answering those questions.

DAVIES: Well, Evan Mandery, I want to thank you so much for spending some time with us.

MANDERY: Oh, thanks so much for having me, Dave.

GROSS: Evan Mandery spoke with FRESH AIR contributor Dave Davies. Mandery is the author of "A Wild Justice: The Death and Resurrection of Capital Punishment in America." You can read an excerpt on our website freshair.npr.org. Coming up, rock critic Ken Tucker reviews a new album by singer and songwriter Robbie Fulks. This is FRESH AIR.

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