Crime and Punishment in American History - Lawrence M. Friedman [202]
In this welter of words, there was certainly no “bright line” standard. No one knew exactly what Furman really meant. Obviously, existing statutes were invalid. Was it possible to write better laws—better in the sense that the Supreme Court would buy them? Legislatures in many states clearly intended to try. They scratched and pecked through the text of the opinions in Furman like chickens, looking for hints. They came up with two main types of statute. The Supreme Court had obviously been troubled because the process seemed random and arbitrary. One group of states, then, passed statutes that made the death penalty mandatory for certain crimes. A second group tried a different tack. They tried to cure the ills of the laws by making them more cautious and elaborate. This batch of statutes, as it turned out, had the right stuff to bring the Supreme Court around.
In 1976, the Court decided a new cluster of death penalty cases, from five different states. The mandatory laws failed the test; the Supreme Court struck them down. The North Carolina law, for example, under which everyone found guilty of first-degree murder had to die, was “unduly harsh and unworkably rigid”; it did not meet “evolving standards of decency.”94 At least this is what five justices thought, out of nine; and that was enough. In Roberts v. Louisiana95 the Supreme Court reversed the death sentence imposed on the killer of a police officer on duty; Louisiana law made the death penalty mandatory in this case, and that too was found to be unacceptable.
On the other hand, in Gregg v. Georgia, the Supreme Court accepted a new Georgia death law.96 The Georgia law set up elaborate procedures. After a defendant was convicted of a capital crime, cf the judge had to consider any mitigating and aggravating evidence. The Supreme Court of Georgia had to review all death cases to see whether “passion, prejudice, or any other arbitrary factor” had influenced the sentence, or whether the sentence was “excessive or disproportionate to the penalty imposed in similar cases.” The message of Gregg was still far from crystalline, but the general approach was clear enough. Life and death could not be left to the unbridled discretion of the jury. There had to be guidance, there had to be extra steps.
Many states lost no time taking up the hint. In California, for example, the death penalty could only be imposed for murder in the first degree, and only if the jury certified that it found one or more “special” circumstances. Killing “for financial gain” was a special circumstance; so was killing a police officer, a fire fighter, a prosecutor, or a judge, or sealing the lips of a witness to a crime by murder. It was a “special circumstance” to kill somebody with a bomb or by poison, or with “the infliction of torture,” or “while lying in wait.” Race-hate killings, too, could bring the death penalty.97cg
Gregg v. Georgia did not, of course, end the controversy over the death penalty. But the tide had turned. Public opinion began to favor the death penalty. Somewhere in the 1970s, those who said yes to death became the majority once more, and that majority solidified over the years. By 1988, 79 percent of the general public favored putting murderers to death.99 Abolitionists became a shrinking minority; but they have guts and persistence, and they do not give up. Executions themselves began again in 1977, when a firing squad in Utah put Gary Gilmore to death. At this writing (1993), there have been more than 150 executions. Almost all of them cluster in a handful of southern states. Outside the South, although hundreds of convicts sit on death row, only a handful have walked the final mile, and, in some states, none. Many prisoners have come within a whisker of execution, but last-minute writs or stays have held off the northern or western angel of death in almost every