As a young lawyer and law professor, I was opposed to it. Actually, it was easy to be against it. The evidence it was being administered arbitrarily and unfairly was so overwhelming that the Supreme Court had effectively placed a moratorium on it. When it came back in the late ’70s, I was there, literally.
The first man to be executed after the moratorium was Gary Gilmore, who wanted to die. The second was a murderer named John Spenkelink, who didn’t. His last appeal, the night before his death, was to the United States Supreme Court. He needed one justice to sign a stay before midnight to keep him alive. He needed four justices the next morning to agree the case was worthy of the court’s review and to keep the stay in force.
All the clerks were warned. It automatically went to the circuit justice, who was expected to deny it. Then they could go to one of the two justices, William Brennan and Thurgood Marshall, who were absolute opponents, but whose votes wouldn’t get him past morning. Or they could go to one of the votes he would need in the morning, probably Potter Stewart. We all figured he’d go to Brennan or Marshall, and we could go home. He came to us — us being the court’s junior member.
I drove an old yellow Maverick, and the overhead light was broken, so my co-clerk, who went on to become a leading death penalty defense lawyer and scholar, read out loud with the flashlight as we drove over to the justice’s apartment.
When we got there, we read it again with him, issue by issue: Was there any basis for concluding that a mistake was made?
We didn’t come up with much, and then he called the other justice “in the middle” and went over it with him, and then we drove back with the unsigned papers and the windows down in case we threw up. What if we had missed something? What if his lawyers had? We hadn’t read a transcript; we just read the papers. Was he the white guy picked to go first and head off a parade of minorities? Why him?
We got back to the court at 11:45 p.m. and found Marshall, then in his later years, waiting with his pen out. The execution took place the next day.
By the time he retired, Justice John Paul Stevens was among the most outspoken critics of the way the death penalty is administered. We reminisced, decades later, about the care we had taken to review the application. It doesn’t work that way anymore.
Even so, I came to view that, as a matter of principle, a society has every right to punish the worst of the worst. It was the murder of a pregnant woman at an ATM that did it for me — stabbed her in the stomach for some cash. It was a month after my son was born. Get the right guy, and you won’t find me fighting to save him, I heard myself say. And it was true.
The “get the right guy” problem is not insignificant. Most of those on death row are brutal murderers.
But no system is perfect, and ours doesn’t aspire to be. So what percentage of error is tolerable when death is the penalty? And just how much are we willing to pay to achieve a tolerable error rate? The work of The Innocence Project, and other organizations, seems to show pretty clearly that it isn’t enough.
Now there is the newest problem. Killing people isn’t so easy. Or rather, as anyone who has lost a loved one to cancer could probably tell you, dying can be very hard. The drug companies don’t want to be a part of the debate by way of making these drugs, states are afraid to disclose what they use, and the last execution took so long that the lawyers filed for a stay.
Did the dying man suffer? They’re not sure. It’s a public embarrassment, or so death penalty opponents are treating it. Is that an argument that we shouldn’t be in the business of killing people?
I just can’t help but think about how most people suffer in death, and none more than those who are viciously murdered.
Susan Estrich is a law professor in Southern California and managed the 1988 presidential campaign of Michael Dukakis.