As he reviewed the situation, Marshall thought the prospects looked bleak. The only faintly positive sign was the Court's curious handling of death cases in the last several years, which reflected a deep ambivalence among his colleagues. The Justices had taken a series of preliminary conference votes on the death penalty, each retracted without having been made public.
In the
1968
term, the Justices had secretly voted
6
to
3
to strike down the Arkansas death penalty
(Maxwell
v.
Bishop)
. State capital punishment laws, the conference had
* Aikens
v.
California, Furman v. Georgia, Branch
v.
Texas, Jackson
v.
Georgia,
and
Moore
v.
Illinois.
decided, must require, after a finding of guilty, a
separate
hearing on sentencing. This would allow a defendant to testify, and to present mitigating facts, without forcing him to take the witness stand during his trial.
Warren, Douglas, Harlan, Brennan, Fortas and Marshall had made up this
1968
majority. Black, Stewart and White had dissented. Warren had assigned the opinion to Douglas, who hurriedly drafted and circulated a sweeping opinion. Harlan had had difficulty with Douglas's opinion; it went too far, calling into question sentencing procedures, not only in death cases but in all criminal cases. Harlan had switched his vote and the comfortable
6
-to
-3
majority had become a very close
5
-to
-4.
Before the opinion could be issued, Fortas had resigned, leaving the Court deadlocked,
4
to
4.
The next year, the tie vote on this case was broken when Warren's vote to strike down the law was replaced by Burger's to uphold it. But the new
5
-to
-3
decision was still too close for Harlan's comfort. He insisted that they put the case over again, to wait for a ninth justice.
Blackmun's vote to uphold the death penalty in the
1970
term
(McGautha
v.
California)
completed the shift. The
1968
secret vote of
6
to
3
to strike the law had become a
6-
to
-3
majority the other way.
Harlan wrote the opinion in
McGautha
that amounted to a limited procedural approval of existing death penalty laws. It held that juries did not have to be given definite standards to guide their sentencing decisions, and that the state did not have to provide the separate hearings—one for guilt and one for punishment—in capital cases.
After Harlan's opinion was announced, the conference met to determine which of the hundreds of persons on death row—whose appeals had been pending the outcome of this case—could now be executed.
Stewart balked. He pointed out they still had not decided whether the death penalty was cruel and unusual, and therefore forbidden by the Eighth Amendment. At his suggestion the conference agreed to take several cases to focus on that issue. The moratorium on executions would continue.
Douglas, however, objected. It was a phony issue. They had already decided the question by a secret vote in a
1967
case
(Boykin
v.
Alabama),
though the result had never been made public since the case was decided on other grounds. Only he and Marshall had voted to strike down the death penalty. Douglas had done so only because a man had been sentenced to die for armed robberies. Had it been a murder case, Douglas said, he would not have found the penalty cruel and unusual. That would be absurd. The death penalty had been around for centuries; it had been recently reaffirmed by several legislatures. It would be "frivolous" to grant a temporary reprieve while the Court pretended to consider an issue it had already settled.
Douglas circulated, and threatened to publish, a rare dissent from the
granting
of cert—as opposed to the more common practice of publishing dissents from a denial of cert. It would be cruel and unusual for the Court to raise the hopes of men on death row, only to execute them a year later. But Douglas failed to persuade his colleagues and withdrew his dissent.
Now, one year later, the Court was about to deal with the "cruel and unusual punishments" question. Marshall figured it was the final showdown. In his view, the odds that five justices would vote against the death penalty were not good; in fact, they were awful. His might be the only vote to abolish the penalty in all instances. Even if Douglas and Brennan came around, that would make only three votes. And capital punishment was now a hot political issue. Nixon had made the death penalty a foot soldier in his war on crime.
Still, Marshall thought that there was one factor working for him. Before his death, Black had predicted privately to his colleagues that the Court would eventually strike down the death penalty, not because of legal arguments, but because of the sheer numbers—
700
men and women— awaiting execution on death row.
This argument had been part of the strategy of Marshall's old law firm, the Inc. Fund. The Fund had led the battle to block executions and had created an informal moratorium on the death penalty by litigating each case in the federal courts. There hadn't been an execution since
1967.
Though Black believed the death penalty was constitutional, he predicted that the Inc. Fund strategy would ultimately prevail. In the end, a majority would not want that much blood on its hands.
Marshall had two clerks research the "cruel and unusual punishments" arguments. Though the death penalty was used at the time the Eighth Amendment was adopted in
179
1,
so were certain other punishments—branding, butchering ears and flogging. They had since been ruled "cruel and unusual." Earl Warren had written in a
1958
opinion
(Trop
v.
Dulles)
that the Eighth Amendment was not "static." It changed, guided by "the evolving standards of decency that mark the progress of a maturin
g society." It was time, Marshall
reasoned, to demonstrate that maturity.
At oral argument on January
17,
Anthony Amsterdam, a young law professor, presented the Court with what Marshall considered the best arguments for the abolition of the death penalty.
First, Amsterdam argued, the death penalty was imposed most frequently against minorities and the poor; statistics showed a clear pattern of discrimination. Second, the death penalty was imposed in an arbitrary and random fashion; there were no consistent criteria for determining who was executed and who was spared. Third, the death penalty could not be an effective deterrent, since it was so infrequently imposed. Fourth, the death penalty was unacceptable to contemporary society; eleven states had entirely abandoned it, and juries with an option to impose it more often than not declined to do so. This last was the evolving standards argument.
Charles Alan Wright; a professor of law at the University of Texas, argued in favor of the death penalty law. Wright said that the legislatures had purposefully given the death penalty option to the juries. The infrequency of imposition did not defeat its purpose. "I would think that it would be cause for rejoicing that we've become increasingly selective about imposing the ultimate and most severe penalty," he declared.
White interrupted Wright to ask whether he was not bothered by the arbitrarily infrequent way juries and judges seemed to be applying the penalty. Stewart pointed out that statistics showed that the juries' imposition of the penalty discriminated against blacks.
Wright agreed. He found both points troubling, but argued that neither rendered the penalty itself cruel and unusual. In his own view there might be some procedural defects in the administration of the laws. But the Court had really settled much of this in the
McGautha
case the previous year. "The Court having decided so recently and so decisively that jury sentencing is proper, that the jury does express the conscience of the community, I would think you'd need quite a powerful showing to change the Court's mind," Wright declared.
Though Marshall and Brennan agreed with all four of Amsterdam's arguments, Douglas rejected the evolving standards argument. Individual rights and protections of the Bill of Rights were absolute. They did not change over time. Douglas had spent his career arguing that point. To give in on it would open up the Bill of Rights to judicial reinterpretation. The Court could as easily cut back on freedoms as extend them. But he was now convinced that so far as the death penalty was discriminatory it was cruel and unusual. He too would vote to strike it down.
Marshall now saw three solid votes to strike. On the other side, Burger and Rehnquist were solid votes to uphold. White, normally sympathetic to prosecutors and state legislators, was a likely third. Blackmun, Powell and Stewart would determine the future of the death penalty, Marshall believed.
Stewart's inclination was to vote to uphold the capital punishment laws. Amsterdam's arguments were seductive, but most did not bear up under close scrutiny. Were the death laws really discriminatory? More blacks received death sentences; but more blacks were convicted of capital offenses. Neither did Stewart buy the argument that capital punishment was ineffective as a deterrent. The statistics were not conclusive. The evolving-standards argument didn't wash either. A large majority of the states, at least thirty-eight, had death penalty laws. Some states, and the United States Congress, had recently enacted new capital punishment legislation.
Stewart also saw an even larger problem. The death penalty could not
suddenly
become unacceptable, "cruel and unusual." What about all those who had been executed before the informal
1967
moratorium? Even under an evolving-standards argument, the Court would look awful. It would appear to have been mistaken the many years it had allowed people to be executed. He could never join such a flat Eighth Amendment ruling.
Still, Stewart was deeply troubled. He had been staying up nights thinking about the issue, and particularly about those
700
individuals on death row. Amsterdam's argument that the penalty was imposed in an "arbitrary" and "random" fashion had some basis. Stewart could find no clear reason why the
700
prisoners on death row had been given the death sentence while thousands of others who had been convicted of capital crimes had received prison terms. Something was wrong. Mass murderers might get life imprisonment and rapists the death penalty. Variations in sentences perhaps could be justified when the difference was between three and ten years in prison. But the death sentence was of a different order. Could such erratic differences be justified? Was that constitutional? Stewart wasn't sure. The infrequent imposition of the death penalty—less than
20
percent of the times when it was an available option—also seemed to render it "unusual" in the dictionary sense of the word: irregular; inconsistent; rare.
This line of reasoning appeared to raise procedural questions. But the
McGautha
opinion had supposedly addressed that issue. It allowed juries the option of imposing the death penalty, even if jurors were not given any standards or rules, or any guidance in arriving at a decision.
McGautha
was a major, though not insurmountable, hurdle if Stewart was tending to vote to strike the laws.
There were also strategic considerations. Stewart could conceive of last term's
6
-to
-3
majority slipping to a narrow
5
-to
-4.
If this happened—if it seemed that the Court was going to uphold the death penalty by a one-vote margin— Stewart would have a severe problem joining such a slim majority. It really would not be acceptable for
700
people to die on the basis of one vote, particularly his. If it came out
5
to
4,
Stewart decided, he would have to vote to strike the laws. That would make it
5
to
4
the other way, but no one would be sent to death. He might therefore, have to find a narrow ground on which to vote against the death penalty.
White told his clerks that Amsterdam's oral presentation had been possibly the best he had ever heard. Still, he found only one argument even remotely persuasive—the contention that the infrequency of the sentence made it an ineffective deterrent. He was concerned with the state's interests, and with the benefit that the government might derive from certain punishments. There were two elements —deterrence and retribution. These interests justified the death penalty for White, even though he was willing to accept that it was inherently "cruel and unusual." If the state's goal of deterring crime and extracting retribution were met, the penalty was justified and constitutional. Certainly the prospect or the high probability of being executed for certain crimes would give a potential criminal pause. But the fact that the ultimate penalty was imposed so infrequently changed things. In fact, at the present time, the probability was that it would
not
be imposed. The deterrent value was no longer credible. On the other hand, the optional death penalties in force clearly reflected the will of the state legislatures, and White did not believe that the Court should frustrate that will unless there were overwhelming reasons. "You can't run the criminal justice system from the courthouse," he said more than once.