Powell was convinced that the Court was going to strike down the death penalty once and for all. He could see his colleagues' frustration as these cases arrived year after year. There was so much pressure—the abolitionists, the nine-year moratorium, those hundreds of people on death row. He thought either Stevens or Blackmun would join the four Justices left from the
Furman
majority to dispose of the issue. Powell thought that Stewart and White would have to hold to their previous votes and opinions. They were in the majority in both the
McGautha
and
Furman
opinions. Since those two cases were contradictory, the only logical next step was total abolition, perhaps in an opinion with a vague constitutional grounding like Blackmun's abortion decision.
Powell remained convinced, however, that he had been right in
1972.
The death penalty was constitutional. Powell also viewed the thirty-five new state laws as convincing evidence that the people wanted a death penalty. Somehow the Court had to accommodate this trend without appearing to simply follow election returns. Surely there were crimes so repugnant that they warranted capital punishment. But if the Court reinstated the death penalty, Powell worried about the hundreds on death row. A wholesale slaughter would be just as awful as a sweeping annulment of the recent acts passed by thirty-five legislatures. He was grateful that he had been personally spared from looking a real live defendant in the eye and pronouncing the death sentence on him. The names of those in the cases—Gregg, Proffitt, Jurek, Woodson and Roberts—were remote and unreal to him.
Powell pondered the possibility of an amnesty. The Court might rule that those who had waited years on death row had already suffered cruel and unusual punishment. He found, however, no support in the law for such a move.
When the states began passing new death penalty laws right after the
1972
Furman
decision, Stewart realized that he had miscalculated. "Professor [Anthony] Amsterdam promised us that if we decided his way this would be the last death case," Stewart told his clerks after
Furman.
Of course, Amsterdam had assumed that the Court would rule all death penalties "cruel and unusual" under the Eighth Amendment. Stewart and White had specifically declined to do that.
Unlike Stewart, White was not suprised by the overwhelming enthusiasm of state legislatures for the death penalty after the
1972
decision. He had predicted these new mandatory laws; and he was not about to have any role now in striking those laws. The standards of society were not evolving against the death penalty. Those new laws requiring juries to consider all mitigating circumstances also satisfied him. If that was what the states wanted, he found nothing unconstitutional about it. White expected that he might be the fifth vote to uphold all five laws if the Nixon appointees held firm.
Brennan was despondent. He anticipated that White would vote to uphold the new laws, and he had no hope for the four Nixon appointees. There was another problem too. Douglas was still trying to participate in the work of the Court. He had called Brennan to announce that he wanted to listen to the oral arguments in the five death penalty cases. Brennan had told him that would be impossible. There were only nine chairs at the bench. Douglas suggested a tenth chair could be brought in.
"No," Brennan said emphatically, "the statute governing the Court clearly calls for only nine Justices. John has taken your place."
"Not you too," Douglas said, and hung up.
The conference decided that the Justices would have to put an end to Douglas's attempts to interfere. They agreed to draft an unequivocal letter to him explaining that since he had resigned, he had no official duties on the Court. He could not sit for oral argument, vote, speak at conference, write or publish opinions. Burger wrote the letter and had it hand-carried to each Justice for his signature. It was painful for Brennan to sign, but he did.
Douglas stopped trying to rejoin the Court.
On March
30
and
31,
at oral argument, Amsterdam called for a total ban on capital punishment. Without spending much time trying to distinguish among the five state laws, he argued that they should all be struck as "cruel and unusual."
Stewart wanted to be sure that Amsterdam was taking an absolute view that the death penalty for "any person in any state for any crime is cruel and unusual punishment, no matter what the technique, no matter how serious the offense, no matter how fair the procedure."
"That is precisely the contention," Amsterdam replied. The life-or-death decision was of such magnitude that asking juries to find differences was unjustifiable. "Our argument is that death is different. If you don't accept the argument that it is constitutionally different, we lose this case."
Brennan, Stewart and White were all upset at Amsterdam's self-righteousness. Amsterdam had lectured them, and, at one point, had even bordered on being rude to Blackmun.
* * *
The conference met on Friday, April
2.
After the traditional handshakes, the Justices sat down. They first voted whether the death penalty was in all cases "cruel and unusual." The vote was
7
to
2,
with only Brennan and Marshall taking such an absolute position.
Then they voted on each of the five state laws individually. Burger, White and Rehnquist voted to uphold all five; Brennan and Marshall voted to strike all of them. The other four Justices split on the various laws.
Stewart thought the main issue was how the death penalty was imposed. He felt that the Georgia and Florida laws provided the soundest sentencing procedures, since they allowed the best chance of consideration of individual circumstances. North Carolina and Louisiana, with mandatory laws, were the least likely to provide fair sentencing. On the fifth case, Texas, he was uncertain.
Blackmun, while still morally opposed to the death penalty, could find no legal ground to vote against it. But in North Carolina, with about one hundred people on death row, there was some evidence that a disproportionate number of blacks had been sentenced to death. Under its new mandatory law, about five times as many people had been sentenced to death than under the pre
-1972
discretionary law. The possibility of racial discrimination troubled Blackmun, but he was not sure that he could accept a theory that would uphold some of the death penalty laws and strike others. For the moment, he passed on North Carolina.
Powell said he favored the death penalty for heinous crimes. But he disliked the compulsory death sentence. "What this country needs is for public executions to be reinstated," he said. If the public had to witness executions, it would be less likely to favor mandatory laws. Minimally the laws should provide a rational way for judges and juries to impose the extreme penalty. State laws providing guidelines, standards and separate sentencing hearings, went a long way toward ensuring that no injustice would be done. And laws like those in Georgia and Florida— providing for automatic state Supreme Court review— would put a check on erratic jury verdicts. He tentatively voted to uphold all the laws, but said he also was unsure about North Carolina.
Stevens voted to strike
the Texas, Louisiana and North
Carolina laws. He called the mandatory North Carolina law a "monster" that, he said, amounted to a "lawless use of the legal system." He felt that the
1972
Furman
decision was the governing precedent and that the essence of it was to provide procedural safeguards. But separate sentencing hearings and review by the state's highest courts could guarantee due process and uniformity, so he voted to uphold Georgia and Florida. The final tally was:
Georgia:
7
to
2
to uphold.
Only Brennan and
Marshall dissented.
Florida:
7
to
2
to uphold. Again only Brennan and
Marshall dissented.
Texas:
5
to
3
to uphold. Stevens joined Brennan and
Marshall in dissenting while Stewart passed.
Louisiana:
5
to
4
to uphold. Stevens and Stewart
joined Brennan and Marshall in dissent.
North Carolina:
4
to
3
to
2
to strike. Brennan,
Marshall, Stewart and Stevens were in the
majority while Blackmun and Powell passed.