A WILD JUSTICE: THE DEATH AND RESURRECTION OF CAPITAL PUNISHMENT IN AMERICA
by Evan J. Mandery. New York: W.W. Norton and Company, 2013. 534 pp. Cloth $29.95. ISBN 978-0-393-23958-4.
Reviewed by Mary Welek Atwell, Department of Criminal Justice, Radford University. Matwell [at] radford.edu
WILD JUSTICE takes its title from a Francis Bacon quotation, “Revenge is a kind of wild justice: which the more man’s nature runs to, the more ought law to weed it out” (p.ii). That is a fine quote, but how does it relate to Mandery’s book? Is he suggesting, as some do, that the debate over capital punishment is really all about retribution? One could make that argument, but it is not really the thrust of this book. Instead, Mandery more broadly describes the period from 1963-1976 when the Supreme Court reviewed the nation’s death penalty laws and found them unconstitutional in 1972. Then, four years later, the Court revisited the issue and identified the elements that could make capital punishment pass constitutional muster. Without doubt, it’s a fascinating and important chapter in American legal history. It is one that has been recounted many times in historical and legal works, as well as discussed in the memoirs of the many participants. Mandery’s work seems designed to bridge the gap between the very scholarly and technical treatments of the issue and more accessible work, often by death penalty partisans. He succeeds to a great extent.
Among the book’s many strengths is Mandery’s exhaustive treatment of the judicial philosophies of several key justices. For example, he provides a great deal of insight into the thinking of Justices Potter Stewart and Lewis Powell, whose “swing” votes would be critical to the outcome of the capital cases. He apparently conducted extensive interviews with former clerks to most members of the Burger Court. For the most part, it appears that the clerks were quite forthcoming in their reports on the negotiations and debates among the justices. He also used the available collections of the justices’ papers as well as the many published sources about the critical cases. In general, Mandery seemed to enjoy access to the surviving major players. Warren Burger, Chief Justice at the time of the major capital cases, provided an interesting exception to the general openness and willingness to discuss the relevant history. Not only have Burger’s papers been sealed and kept off limits to scholars until 2026, but he also required that his clerks swear an oath to maintain confidentiality about their work for him during their lifetimes. One can only wonder why.
The major outlines of the story are familiar to most scholars who study capital punishment. Mandery maintains that the decision to consider whether the death penalty was constitutional was far from inevitable. The ruling in McGAUTHA v CALIFORNIA (1971) seemed to foreclose the argument that capital punishment was unconstitutional on the grounds that it was arbitrary. However, [*16] in the arguments leading up the consideration of the cases that became known as FURMAN v GEORGIA, Justice Stewart, for one, became convinced that the Court could look at arbitrariness not only as an Equal Protection issue that implicated the Fourteenth Amendment, but also as an Eighth Amendment issue. They could decide whether arbitrariness could create results that met the definition of cruel and unusual punishment. Mandery credits Anthony Amsterdam, lawyer for the Legal Defense Fund (LDF), as the architect of this distinction and many other significant arguments in the whole scope of death penalty litigation. In fact, it is not an overstatement to note that Amsterdam is a major hero in this history. Some admirers of Thurgood Marshall might contest this view, but Mandery states of Amsterdam that “no other attorney in American history has had such a profound influence on civil rights issues”(p.41).
When the Court decided FURMAN in 1972, a moratorium on executions had been in place since 1967 and public opinion showed declining support for capital punishment. Some celebrated extravagantly, believing the sanction had been permanently abolished when they learned of the 5-4 opinion stating that the death penalty as applied was unconstitutional. Contemporary readers know that the victory was short-lived and that general public response to FURMAN was negative. Why did this negative reaction occur? And how did it happen that only four years later the Court reversed itself and upheld the capital sentencing schemes of Georgia, Texas, and Florida? Those seem to be the real central questions of this book and it is not clear that Mandery has provided satisfactory answers. When considering the backlash against FURMAN, Mandery offers several possible explanations. He suggests that high crime rates might be a major cause, but then rightly dismisses that suggestion as factually unsubstantiated. In fact, the rise in crime rates had come in the late sixties when support for capital punishment was declining. Politicians such as Richard Nixon, Ronald Reagan, and George Wallace raged against the “activist” Court in the wake of FURMAN. But politicians often score points about judicial actions without undoing decisions in the long term. Consider the reaction to BROWN v BOARD OF EDUCATION. Mandery’s thesis is that much of the reaction to FURMAN was about race; one might even say that it stemmed from deep-seated racism. He argues that Americans were angry that the Supreme Court had apparently endorsed the busing of school children to achieve racial integration in a 1971 case, SWANN v CHARLOTTE-MECKLENBURG BOARD OF EDUCATION. And the backlash was also about culture wars. In 1973, the Court ruled in ROE v WADE that states could not outlaw all abortions during the first trimester of pregnancy. The “Silent Majority” felt that their deepest values were jeopardized by a bunch of activist justices. Richard Nixon, clever at mobilizing negative public opinion, played upon these fears. Politicians in state legislatures could not act to repeal SWANN or ROE, but they could pass laws that reinstated capital punishment. In response to strong public demand, they did so. The Court, having earlier established “evolving standards of decency” as a yardstick for gauging the meaning of cruel and unusual [*17] punishment, found itself hard pressed to say that capital punishment violated the standards manifested in the actions of a large majority of state legislatures as well as the behavior of the U.S. Congress. Thus when it came time to rule on GREGG v GEORGIA, a combination of awareness of public attitudes, the poor arguments made before the Court by Amsterdam and others who wanted to preserve FURMAN, and the conviction on the part of Justices Stewart, Powell, and Stevens that the new laws addressed the issue of arbitrariness, meant that the death penalty would be reinstated. After reading Mandery’s book, I am still not sure I am convinced of his explanation for the public reaction to FURMAN, although his account of the centrist justices wrestling with the issue is more persuasive. A related point that he might have developed further is whether FURMAN was fatally weakened when, shortly after the cases were argued, Chief Justice Burger decided that each of the justices should write a separate opinion. Had FURMAN resulted instead in a strong holding, supported by a majority, might it not have been more difficult to overturn?
Mandery clearly has his favorite and his least favorite characters in the capital punishment drama. There are few kind words for Chief Justice Burger or for Justice William Douglas. The latter’s unpredictability and capriciousness apparently made him an extremely difficult colleague. Mandery shares the frustration his fellow justices must have felt. More puzzling is his apparent disdain for Justice Harry Blackman, whom Mandery labels indecisive. Some might argue that Blackmun was cautious and even thoughtful, as well as modest. Caution and thoughtfulness are, on the other hand, often considered admirable in Justice Powell. Clearly Justice Potter Stewart gets Mandery’s highest admiration. Contemporary readers may share his respect for the several members of the Court who, rather than starting from preconceived notions of their constitutional duty, genuinely wrestled with their responsibilities to find solutions to the most difficult questions.
A few minor quibbles with the author’s style seem worth mentioning. At times, the very engaging narrative was interrupted by distracting and unnecessary biographies of very minor players. Perhaps he felt obliged to acknowledge those who had provided information, but such digressions did not add to the story’s development. It is also annoying to read passages that must be purely products of a writer’s imagination. Statements like “As Burger gave the cue for the justices to step forward, Brennan dreamed for the first time of forming a majority against capital punishment”(p. 145). At another place he writes that Stewart’s heart told him one thing but his brain told him another. How could Mandery possibly know these things?
On balance, this book makes many fine contributions to our understanding of the evolution of capital law. Its release by a major publishing house should ensure that it is more widely read than many scholarly works. Those who would like to see ongoing informed discussions of capital punishment can only be grateful for that.
BROWN v BOARD OF EDUCATION, 347 [*18] U.S. 483 (1954).
FURMAN v GEORGIA, 408 U.S. 238 (1972).
GREGG v GEORGIA, 428 U.S. 153 (1976).
McGAUTHA v CALIFORNIA, 402 U.S. 183 (1971).
ROE v WADE, 410 U.S. 113 (1973).
SWANN v CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1 (1971).
Copyright 2014 by the author, Mary Welek Atwell.