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By Root 1828 0

of one Richard Biegenwald, who had killed a woman in Camden in 1982 (nine years earlier). This was Biegenwald’s third conviction for murder. The court, rather surprisingly, said prospective jurors should have been told this fact, to “weed out those who might have felt unable to judge him objectively.” The defendant “has killed twice before,” said Justice Robert L. Clifford. “We are not sure, under these circumstances, how many people could fairly sit on a jury in this case.” But of course this horrendous information, about Biegenwald’s habit of killing people, is verboten as evidence in the guilt phase of a trial. Thus the New Jersey court was, practically speaking, requiring two separate juries for all capital cases.112 This was the thirtieth time (out of thirty-one cases) that the New Jersey high court had reversed a sentence of death. In January 1992, the court made it thirty-two out of thirty-three when it set aside the death sentence of Braynard Purnell.113

The Massachusetts story is just as dramatic. The state’s highest court declared the death penalty unconstitutional on the grounds that it was cruel and unusual punishment, in violation of the Bill of Rights of Massachusetts. Of course, on this point the state and federal constitutions were practically identical; the U.S. Supreme Court had upheld a very similar law, specifically ruling that the death penalty was not “cruel and unusual.” No matter; the English words cruel and unusual meant something different in Boston than they did in Washington, D.C.114

The legislature in Massachusetts found this decision hard to swallow. It was also unpopular with the voters. The legislature proposed a constitutional amendment, which read: “No provision of the Constitution ... shall be construed as prohibiting the imposition of the punishment of death.” That seemed plain enough. The public voted yes on this proposed amendment in November 1982. Thereupon the legislature adopted a new death-penalty act, sat back, and waited.

But the Massachusetts court had another trick up its sleeve. In 1984, the court struck down this new law. How could they do this? The court explained, a little disingenuously, that they were not construing anything as “prohibiting” the death penalty altogether; the new amendment did not mean they were not entitled to strike down some particular death-penalty law, if it did not measure up to constitutional standards.115

Massachusetts and New Jersey judges, it seems plain, could barely conceal their distaste for the electric chair and the gas chamber and the whole death-penalty apparatus. The New Jersey and Massachusetts decisions are as convoluted, as hypertechnical, as distant from common-sense logic as any nineteenth-century examples of legal “hypertrophy.” The judges claimed they were only deciding the “law,” but this was a fairly transparent fig leaf. There seems to be, in short, a sharp conflict between, on the one hand, the general public, which wants the death penalty (though how much? and under what circumstances?), and, on the other hand, a minority that finds it repellent, and a tiny band of zealots who would move heaven and earth to get rid of it. Any field of law so embattled, so locked between strong, irreconcilable groups, will develop certain pathologies. It will become complex, Byzantine, its pace will slow down, its behavior will become jerky and erratic. This is not because of any technical reasons, but because social conflict produces erratic, unpredictable behavior as the combatants rain blows on each other and the legal system gets buffeted this way and that.

Thus Robert Weisberg has a point when he speaks about a “culturally optimal number of executions.” What number is that? It would be the resultant of a sort of “logical, if crude compromise between the extreme groups who want either no executions or as many as possible.” The compromise takes the form of having “some executions, but not very many.” One can imagine “a socially stabilizing design for the death penalty which leads to just the right number of executions to keep the art