The Death Killers

On June 29, 1972, when the five non-Nixon nominees on the Burger Court ruled that the death penalty in the U.S. was cruel and unusual punishment, virtually every legal handicapper was stunned. But during the previous nine years, a small and exceptionally talented group of lawyers had worked quietly toward just such a result with painstaking premeditation. Cruel and Unusual, written by one of the lawyers, Michael Meltsner, and published this week by Random House ($8.95), tells how they did it. The details of the battle make for a sometimes rousing intellectual adventure story.

The idea for the legal full-court press developed slowly in the offices of the N.A.A.C.P. Legal Defense Fund, the organization of lawyers (now independent of the N.A.A.C.P.) that had won the long legal battle against Southern school segregation. Primarily concerned with representing black clients and causes, L.D.F. attorneys were well aware that the death penalty was imposed in the South with disproportionate frequency against black men convicted of raping white women, but it was difficult to prove in court. So in the summer of 1965 a group of students was sent South to gather all possible data from the past 20 years on rape sentencing in various counties of eleven states.

Though the resulting study by University of Pennsylvania Sociologist Marvin Wolfgang impressively documented discrimination, no court would buy the argument that general statistics proved unconstitutional bias in a particular case. The L.D.F. concluded, says Meltsner, that it could never win "unless the fact that a high proportion of blacks were subject to execution emerged as but one distasteful aspect of a far greater evil." Thus, in 1967 the L.D.F. decided to fight the execution of every man and woman on death row in the U.S., a total then exceeding 400.

Friendly attorneys in states with the death penalty were enlisted to alert the L.D.F. to imminent execution dates. A so-called Last Aid Kit was drawn up, complete with an array of papers, forms and arguments, making it possible for almost any attorney to obtain a stay with a minimum of effort.

The chief legal tactician was Anthony Amsterdam, a law professor then at the University of Pennsylvania, now at Stanford, and his tactics soon began to pay off dramatically. Amsterdam and other lawyers won a stay from the Supreme Court in one case while the racial bias issue was being considered, scored a legal first with a previously unheard-of class action habeas corpus petition that blocked all Florida executions, and then in 1967 won a stay for everyone on California's death row.

Virtually every argument known to Western law was mustered against capital punishment. As a result of one such argument--made in a rare case that did not involve the L.D.F.--the death sentence was declared unconstitutional when only a jury could impose it; the Supreme Court concluded that this practice meant defendants might waive their right to a jury to avoid the risk of death. The court also threw out death sentences when potential jurors in the case had been excluded if they had even slight reservations about capital punishment.

By mid-1971, there had not been an execution in the U.S. for four years. But the Supreme Court had just rejected two key L.D.F. arguments. One attacked the lack of legal standards guiding a jury's decision to require death; the other objected to the general jury practice of deciding on both guilt and the capital penalty without an intervening chance for a presentencing hearing. The only major contention the L.D.F. had left was that the death penalty constituted cruel and unusual punishment. But that legal argument succeeded one year later. The unexpected success, in Meltsner's view, had as much to do with all that had gone before as it did with the specifics in the legal briefs.

"The politics of abolition," he says, "boiled down to this: For each year the United States went without executions, the more hollow would ring claims that the American people could not do without them; the longer death-row inmates waited, the greater their numbers, the more difficult it would be for the courts to permit the first execution." The battle is not over, of course. At least 19 states have passed new statutes that permit capital punishment for specific crimes, and a group of district attorneys is now trying to organize a countercampaign not unlike that of the L.D.F. The idea is that the court's ruling had hinged on objections to the capriciousness with which capital punishment was administered and therefore if the conditions calling for death are rigidly defined under new laws, they may pass constitutional scrutiny. But it is likely that two or more years will go by before the Supreme Court hears the new arguments. By then the U.S. will be nearing a decade without an execution, and Meltsner's "politics of abolition" may be stronger than ever.

This file is automatically generated by a robot program, so reader's discretion is required.