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The following article originally appeared in Salt of the Earth. It is posted here for private use only. It may not be reprinted in whole or in part without the permission of Salt of the Earth magazine.

Suspended sentence:
how the U.S. almost put capital punishment to death

Kevin Clarke

William Micke was awakened by a noise in his Savannah, Georgia home in the early morning of August 11, 1967. Micke and his wife were unconcerned when he arose to investigate the disturbance, deciding it was probably their 11-year-old son sleepwalking again. A few minutes later his wife heard a "real loud sound and [her husband] scream."

jailGathering her five children together, she escaped with them into a closet, locked the door, and called out for help. When a neighbor arrived, she phoned police. A police officer responding a few minutes later found Micke collapsed by a back entrance to his home. He had been shot once through the chest. He was dead.

Not long after this dreadful discovery, another officer spotted 25-year-old William Henry Furman emerging from a wooded area near the Micke home. He was captured after a brief pursuit, carrying the .22-caliber handgun which had killed a father of five.

This was the awful beginning of a five-year judicial process that would end in a landmark Supreme Court decision which would change, however briefly, the course of American judicial history. It was this William Henry Furman who in 1972 would hear his death sentence reversed by the highest court in the land.

Four years after that decision, another man, Troy Leon Gregg, convicted and sentenced to death for the killing of two men during a robbery, would also be standing before the U.S. Supreme Court, also pleading for his life. He would hear an entirely different decision, however, one that would end America's short judicial abolition of the death penalty and lead in 1977 to the renewal of the use of capital punishment with the spectacular firing-squad execution in Utah of Gary Gilmore.

Americans have maintained a somewhat ambivalent attitude toward the death penalty—at least legislatively—since the founding of the nation. Founders included the Eighth Amendment prohibition against cruel and unusual punishment in the Constitution but apparently did not consider the death penalty so. A 1790 law passed by the first Congress, in fact, named murder, forgery of public securities, robbery, and rape offenses which could be punishable by death. The Fifth Amendment due-process clause includes a provision for the use of the death penalty.

At the same time, misgivings about the use of capital punishment became evident as early as the 1780s. Through the mid-19th century and continuing into the 1920s, following a global trend against the use of the death penalty, 15 states abolished capital punishment. That abolition was not destined to last, however, and by the end of the 1950s, only six states maintained a ban on capital punishment.

All the same, throughout the mid-20th century until the reinstatement of capital punishment in 1976, most states were showing an increasing reluctance to exercise this ultimate authority. States in the Midwest and Northeast infrequently and haphazardly applied this ultimate penalty (providing the foundation for one of the later charges against capital punishment—that it is used in a "freakish" and arbitrary fashion).

It was only in the South, where traditionally most executions have been carried out in the U.S., that the use of capital punishment was continuing with any real vigor by the time of the Furman decision in 1972. (That pattern has been repeated since the return of capital punishment; nearly 300 of the over 360 executions carried out since 1976 have been conducted in the South.)

It is more than coincidence that the three major constitutional decisions handed down by the U.S. Supreme Court on the death penalty began their judicial journeys in Georgia—a state which hosted 460 of the 3,220 or so lynchings that occurred in the South between 1880 and 1930. As the spectacle of a Southern lynching grew less palatable to American tastes, a more sanitized version of community-sanctioned killing was rising to take its place in the South. In Georgia alone, state-executed death sentences between 1924 and 1972 took the lives of 337 blacks and 78 whites. Sixty-six men were executed for rape; 63 of them were black.

Most Western societies had abolished the death penalty by the mid-1960s. Meanwhile in the U.S., as legislative efforts to abolish capital punishment stalled, the legal community of the 1950s and 1960s began to show an interest in capital punishment—if not in its abolition, then at least in the refinement of some of its worst excesses.

Though the Supreme Court had issued decisions on other capital cases before, the issue of the constitutionality of capital punishment itself had never been seriously considered until a 1963 dissent from Justice Arthur Goldberg.

Dissenting from the majority opinion in Rudolph v. Alabama, Goldberg argued that "evolving standards of decency that mark the progress of...maturing societies now condemn as barbaric and inhumane the deliberate institutionalized taking of human life by the state." Goldberg's dissent sent a signal to the American legal community that at least some Supreme Court justices were now willing to consider a challenge to the constitutionality of the death penalty. Lest that message be lost, his clerk, a young lawyer by the name of Alan Dershowitz, mailed copies of Goldberg's dissent to lawyers across the country.

Beginning in 1965, the National Association for the Advancement of Colored People's Legal Defense Fund (LDF) took up the gauntlet Goldberg had thrown down, launching a court and legislative campaign for a moratorium on the death penalty. The fund picked a good time: between 1963 and 1966, six states abolished the death penalty—more than had in the preceding 40 years combined—and public support for capital punishment reached an all-time low of 42 percent.

By 1968, the moratorium strategy paid off; this was the first year in U.S. history that saw no state-sanctioned execution. But 1968 would also be the year when the assassinations of the Rev. Martin Luther King, Jr. and Senator Robert Kennedy, combined with the general unrest in the streets of America's major urban centers, would lead to renewed public support for "law and order" strategies, including capital punishment—a trend that continues to this day. Still, the LDF's moratorium effort culminated in 1972 with the Furman decision.

It was the determination of the Supreme Court itself to dispose of capital-punishment cases "once and for all" that brought matters to a head in 1971 when the court scheduled Furman v. Georgia and three other death-penalty cases on its docket.

LDF attorneys began their presentation in late October 1971, arguing that the death penalty was in violation of the Eighth Amendment because its use affronted "basic standards of decency," noting that the death penalty was infrequently applied even in states where it had not been abolished, that people who are sentenced to death are most often black, "poor and powerless, personally ugly, and socially unacceptable."

Amicus briefs offered evidence of capital punishment's lack of deterrent value and emphasized the court's responsibility in protecting minority rights—an attempt to deflect opinion that capital punishment was an issue better left to legislative review.

While the nation waited for the Supreme Court decision, two state supreme courts returned opinions of their own, striking down the death penalty in New Jersey and California and automatically commuting all sentences in those states to life imprisonment. The California Supreme Court determined that the death penalty violated the state's provision against cruel and unusual punishment, adding that the death penalty "degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goals of the state and it is incompatible with the dignity of man and the judicial process."

California Governor Ronald Reagan was overseeing the nation's largest death row at the time with 107 prisoners. In response to his court's decision, an angry Reagan neatly capsulized the debate that has swirled around this issue since Furman, calling it a "case of the courts setting themselves above the people and the legislature" and vowing "revenge." It can only remain a subject of historical speculation whether or not Reagan's subsequent U.S. Supreme Court appointees represent that revenge.

By the time the Supreme Court issued its decision, a backlog of over 700 defendants had overrun America's death rows because of the LDF moratorium strategy. A decision for the state would unleash a state-sanctioned bloodbath that left more than a few of the esteemed justices feeling queasy. On June 29, 1972, the court struck down the death penalty in a five-to-four decision, automatically commuting death sentences all over the nation.

Among the five justices of the majority decision, however, there was little agreement beyond a belief that the "freakish" manner in which capital punishment was applied from community to community and state to state was too inconsistent and too arbitrary to satisfy constitutional requirements. Only two justices argued that capital punishment represented an outright violation of the Constitution, insupportable under all circumstances.

That meant that, although the court had struck down the death penalty, a plurality still believed that capital punishment could be constitutional given the right safeguards and standards of judgment. President Richard Nixon, whose four appointees represented Furman's dissenting wing, wasted no time in pointing this possibility out. Speaking on the day of the court's decision, he said, "The holding of the Court must not be taken...to rule out capital punishment."

It was through that judicial loophole that Georgia state attorneys would drive their case against Troy Gregg four years later. In the years between the Furman and Gregg decisions, pro-death-penalty states scrambled to devise judicial guidelines that would satisfy the Supreme Court's concerns over the "arbitrariness" of capital punishment.

California became the first state to restore the death penalty. Governor Reagan's Proposition 17 to override the California Supreme Court and restore the death penalty in California, passed in November 1972 by a two-to-one margin.

Florida came next. Ignoring the opinion of a state review committee that no law could be crafted that would satisfy the Supreme Court's concerns over arbitrariness, Florida legislators, working in a four-day special session, reinstated capital punishment in December 1972. The public temper had changed, quickly and drastically. Public repugnance to the death penalty, which had reached an all-time high just a few years earlier, had reverted to 1930s levels of support—and American politicians knew it. Other states quickly followed Florida's lead.

Another court collision over capital punishment seemed inevitable. When Gregg v. Georgia reached the Supreme Court, both the mood of the public and the nature of the court had shifted fundamentally. Nixon appointees now dominated the court, and a sense that crime was raging out of control in America was palpable—even among the justices on the bench.

On July 2, 1976, the court reversed itself, noting its general satisfaction that the new guidelines instituted by Georgia and other pro-death-penalty states would eliminate the "unbridled discretion" of capital juries and allow the death penalty to be administered in a rational, predictable, ultimately just manner.

One of the first cries of criticism came from the U.S. Catholic Conference, which warned that the Gregg decision "can only mean a further erosion of the value of human life and an increased brutalization of our society."

Since the Gregg decision the death penalty has withstood a variety of court challenges.

Even late-arriving evidence of innocence, according to a 1992 Supreme Court decision, is not cause for a stay of execution as long as judicial guidelines have been properly observed throughout the trial and appeal process. Indication that some on death row are wholly innocent of the crimes for which they've been condemned came most spectacularly recently in two Illinois cases. A total of six men were released after years on death row, where they had waited under death sentences for two separate crimes.

Since 1970, over 60 people have been released from death row after evidence of their innocence was uncovered. Researchers say that in this century as many as 417 people have been wrongly convicted of capital offenses and 23 innocent people have been executed.

In the years following the Gregg decision, death-penalty opponents won about as many capital cases as they lost when they reached the Supreme Court. All the same, the Gregg decision has never been seriously threatened.

The 1987 decision McCleskey v. Kemp has further solidified the authority of Gregg. This decision acknowledged in the application of the death penalty "a discrepancy that appears to correlate with race" but declared it "an inevitable part of our criminal-justice system."

Though it has previously stepped into other cases of apparent discrimination in landmark educational, housing, and job-opportunity legislation, the federal government has remained remarkably timid regarding allegations of discrimination in the application of the death penalty.

Responding to a petition from Amnesty International in 1994, the U.S. Attorney General's Office decried the use of capital punishment in an unjust or discriminatory manner but expressed its support for the death penalty in "appropriate cases." While the implicit message of that kind of response suggests that federal authorities are unwilling to interfere with states that rely on the death penalty, a report from the federal General Accounting Office would indicate a moral or legal compunction to do so.

The 1990 report, "Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities," an analysis of 28 studies of the death penalty, found that in 82 percent of the studies, race of the victim influenced the likelihood of a defendant being charged with capital murder or receiving the death penalty. Those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.

If an abolition of the death penalty appears unlikely to be achieved through a judicial route, legislative action against the death penalty—which currently enjoys an 80-percent public approval rating in cases of murder—appears even less likely.

Whatever else you might say about the death penalty, it sure is not the cheap way out for U.S. taxpayers. A 1993 Duke University study found that in North Carolina it costs $2.16 million more to execute a single person than it does to imprison that person for life. According to the Death Penalty Information Center, on a national basis, the extra cost comes to over $700 million spent since 1976 on the death penalty.

Since the resuscitation of the death penalty in 1976, 432 people in 26 states have been executed in the U.S. (That number is due to accelerate quickly over the next few years as the long appeals process on court decisions of the 1970s and '80s winds down.) Over 3,000 remain under sentence of death in the 38 states that allow capital punishment.

William Henry Furman was paroled in April 1984. Troy Leon Gregg escaped with four other death-row prisoners on July 28, 1980 and was killed later that night during a fight in a "biker bar" in North Carolina.—END

Copyright 1998 by Claretian Publications. May not be reprinted in part or whole without the permission of Claretian Publications. Call 312-236-7782. Kevin Clarke is a Chicago-based freelance writer and Managing Editor of online products for Claretian Publications. He can be reached at clarkek@claretianpubs.org.

© 1999 by Claretian Publications

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