Crime and Punishment in American History - Lawrence M. Friedman [203]
More conservative than before, the Supreme Court stuck to its guns in the 1970s, at least in the sense that it did not go back to Furman. It was impossible to cobble together an anti-death-penalty majority. Some cases did chip away a bit at the death penalty. In 1977, in Coker v. Georgia 100 the Court struck rape from the list of capital crimes. It was a heinous offense, to be sure, but death was a “grossly disproportionate and excessive” punishment for rape, and could not stand.101 But later news was bad for the abolition movement, however, and kept getting worse.
The situation today is fairly bleak. The most recent general attempt, in a way, to attack the death penalty broadly was McCleskey v. Kemp (1987).102 Warren McCleskey, a black man, had taken part in a robbery of a furniture store in 1978 in Georgia. A police officer, answering a silent alarm, entered the store during the robbery. He was shot and killed. McCleskey was convicted of murder and sentenced to death. McCleskey’s central claim was that “the Georgia capital sentencing process is administered in a racially discriminatory manner.” This argument rested on an elaborate statistical study: an analysis of over 2,000 murder cases in Georgia, conducted by a team headed by Professor David C. Baldus. “Sophisticated” statistics tended to show that someone in Georgia who killed a white was much more likely to get the death penalty than someone who killed a black. But McCleskey lost, by a bare majority. The study, five justices thought, did not prove that race was a significant factor in McCleskey’s particular trial. It merely showed a “discrepancy that appears to correlate with race.”103
Nobody can read the justices’ minds, but it is hard not to wonder what the majority justices were really thinking about. Baldus’s statistics were impressive, and even the present conservative Court tends to be somewhat sensitive to issues of race. Perhaps the majority was worried about the consequences of letting McCleskey off. Would that mean that no southern black could ever get the death penalty? Or perhaps no black in any state? If so, then the whole structure would collapse: the Court was not about to create a system in which only white people were eligible to die. And the current Court, like most Americans, believes in the death penalty; it is clearly unwilling to get rid of it, directly or indirectly.104
The most recent cases have, on the whole, gone badly for the men on death row. Kevin Stanford was sentenced to death for murder and other crimes committed when he was seventeen. His lawyers argued strenuously that the death penalty was “cruel and unusual” for a lad of such tender years. The Court affirmed his conviction in 1989, in Stanford v. Kentucky.105
Most of the current justices, in fact, want to change the system: they want more executions, and they want them to come more quickly. This sounds more callous than it is. It comes out of a sense of frustration—or restlessness, impatience, disgust—a sense the public shares, unless every sounding of popular opinion is grossly off base. The march to the death chamber is simply too slow. The constant appeals, writs, pleas, the endless legal maneuvering, the setting and resetting of dates, the last-minute stays—all this disturbs and angers people. Why can’t we just put these terrible people to death and be done with it?
The Supreme Court does what it can, but the process speeds up, if at all, only a little.106 Death on death row is still a lingering death. The march to the death chamber is a torturous crawl. It takes so long, that in the process it converts into martyrs of sorts men and women whom nobody would otherwise sympathize with. The slow pace is a fairly recent development. To be sure, there have been complaints about delay for almost a century. The Tucker case, early in the century, was regarded as a horrible example. Tucker killed Mabel Page, in Weston, Massachusetts, on March 31, 1904. He was arrested, tried, convicted, and sentenced to death. But he actually went to the chair in June 1906, two years and three