Crime and Punishment in American History - Lawrence M. Friedman [201]
Some people still sound these themes, but on the whole the system has shifted in the other direction. The overwhelming fear of crime, the anger, the frustration, must surely be the main underlying cause. Screams of rage drown out the milder voices. The prison system bulges with prisoners.85 The rate goes up and up. As of 1988, there were over 600,000 men and women (mostly men) in state and federal prisons—the number had tripled in about fifteen years.86 In California, there had been “extraordinary growth” in the prison population. At the beginning of the 1980s, there were 22,500 prisoners; eleven years later there were over 100,000.87 We throw people into prison at an astonishing rate. There has never been anything like it in American history. Penology is overwhelmed by the sheer pressure of bodies. The general public is not interested in rehabilitation, not interested in what happens inside the prisons, not interested in reform or alternatives. It wants only to get these creatures off the streets.
No one is satisfied. No one has real answers. Conditions in the prisons may be better than in the nineteenth century, but the prisoners are twentieth-century prisoners. They are sullen and resentful. Terrible riots still occur: Attica (New York), in 1971, was one of the worst; but far from the only one. And riots continue to erupt.88 Despotism and anarchy turn out to be a dangerous, explosive combination.
The Death Penalty
The Supreme Court has handed down many dramatic and consequential decisions in this century; but Furman v. Georgia (1972) would have to rank high on any list. Furman swept away every death penalty statute in the country; and spared the lives of every man and woman on death row in one grand gesture.89
Furman did not come up out of nowhere. It was the climax of a long campaign against the death penalty. Among the campaigners was the NAACP, keenly aware that blacks were put to death out of all proportion to their numbers. Blacks may be a minority in the population, but over half of the people put to death were black, and death for rape was practically a black monopoly.90 Generally speaking, too, public opinion had turned against the death penalty. In 1936, according to the Gallup poll, 62 percent of the population supported the death penalty; by 1966, the number had fallen to 42 percent.91
Fewer and fewer people were actually put to death: 199 in 1933; 82 in 1950; only 2 in 1967. Alaska and Hawaii (in 1957), Oregon (in 1964), and Iowa and West Virginia (in 1965) did away with the death penalty, joining Michigan, Maine, and Wisconsin, which made the move in the nineteenth century. From 1967 to Furman, when the issue was finally adjudicated in the Supreme Court, no one was executed at all.92
The Furman court was, to be sure, deeply divided. Every single one of the nine justices wrote a separate opinion. Furman, said Robert Weisberg, was not “a case” at all; it was a “badly orchestrated opera, with nine characters taking turns to offer their own arias.”93 The so-called majority of five was itself deeply split on the central issue: Was the death penalty inherently unconstitutional, or was it only that existing laws had some correctable flaw? Justice Brennan thought the death penalty was “cruel and unusual” in all cases, a “denial of the executed person’s humanity” and “uniquely degrading to human dignity.” Only Thurgood Marshall agreed. Three other justices joined the majority, but rested their case on less global condemnations. Death sentences under the current laws, said Potter Stewart, were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Only “a capriciously selected random handful” get sentenced to death. The four dissenters pointed out, correctly, that the Constitution itself mentions the death penalty. How, then, could it violate the Constitution? Yes, the death penalty was comparatively rare; but this was a sign, according to Chief Justice Burger, that juries