The Undying Problem Of The Death Penalty


Chief Justice Oliver Wendell Holmes of the Massachusetts Supreme Judicial Court spent part of May 6, 1901, writing about the death penalty, and specifically about electrocution. Earlier that day lawyers for Luigi Storti, a twenty-seven-year-old Italian laborer without a family in America, convicted for the murder of a fellow immigrant in Boston’s North End, had argued that electrocution was punishment “cruel or unusual,” proscribed by the Massachusetts Declaration of Rights, a charter nine years older than the federal Bill of Rights.

Until 1898 the mode of capital punishment in Massachusetts, as in almost every other state that inflicted death, had been the gallows. The electric chair was supposed to eliminate the uncertainty and pain of hanging (where miscalculation of the “drop” distance might result in slow strangulation or ripping the head from the body), with the aid of the nineteenth century’s secular deity, science, and that newly harnessed miracle, electricity.

Although Storti was to be the first person ever to die in Massachusetts’s electric chair, he naturally cared less about the method of execution than about mere survival. His lawyers’ first move after the guilty verdict had been a straightforward review by the Massachusetts high court focusing on claims of legal error, such as that the statements he had made to the police were not voluntary. That appeal had failed, and so had an effort to obtain an executive commutation and a legislative attempt to abolish the death penalty completely. Then, days before his execution, Storti developed pulmonary hemorrhages, probably from tuberculosis, that left him so weak he would have to be carried to the electric chair. Unwilling to execute a dying man—and hoping for a natural death that would solve everyone’s problems—Gov. Murray Crane stayed the execution until May 11.

Then Storti’s health began to improve, and his lawyers presented the petition that Holmes and his colleagues had just considered. With less than a week remaining before execution, Holmes—a fast worker under any circumstances—set out the Court’s views promptly so that, as he put it, “we may avoid delaying the course of the law and raising false hopes in [Storti’s] mind.”


The planned execution, Storti’s lawyers had argued, was cruel or unusual punishment because the procedure involved not only pain and death but also psychological anguish. No, replied Holmes, electrocution was “devised for the purpose of reaching the end proposed as swiftly and painlessly as possible.” Any mental suffering, he added, “is due not to its being more horrible to be struck by lightning than to be hanged with the chance of slowly strangling, but to the general fear of death. The suffering due to that fear the law does not seek to spare. It means that it shall be felt.” Holmes was merely saying in his elegant, direct way that the death penalty sought as much to deter future criminals as to punish current ones.

Storti’s lawyers immediately petitioned for a federal writ of habeas corpus, this time arguing that Storti’s detention somehow violated a treaty between Italy and the United States. Impatiently the federal circuit court in Boston denied the petition and even (as lower federal judges were permitted to do) prohibited the right to appeal to the United States Supreme Court.

Undaunted, counsel for Storti persuaded United States Supreme Court Justice Horace Gray to allow the appeal to proceed, meanwhile lodging another appeal, which Holmes quickly rejected, arguing that irreconcilable laws were requiring both “special” and “solitary” confinement before execution. On December 2, 1901, the Supreme Court permanently ended Storti’s procedural odyssey. The grounds purporting to justify Storti’s release, said Justice David Brewer for a unanimous Court, were “wholly without foundation.” He called the case “another of the numerous instances” in which applications and appeals were taken “quite destitute of meritorious grounds, and operating only to delay the administration of justice.”

It is difficult to tell whether the exertions on Storti’s behalf drew their inspiration from the death penalty itself or from the fearsome new technology. New York had enacted the first electrocution statute in 1888, responding to the report of a special commission that it represented “the most humane and practical method known to modern science of carrying into effect the sentence of death.”

We tend to consider misgivings about the death penalty a late-twentieth-century concern. In fact, in 1794 Pennsylvania abolished death as a punishment for all crimes except “willful, deliberate, and premeditated” killing. Even earlier, in the colonies as in Britain, the courts had applied a concept called “benefit of clergy” to decapitalize manslaughter—that is, killing without malice. In medieval England clerics could insist on being tried in ecclesiastical courts; they proved their status by demonstrating literacy (because, generally, only they knew how to read). Later the “benefit” became available to any demonstrated reader. By 1707 even an illiterate first offender could escape the noose, after being branded on the thumb to preclude any subsequent application. Louisiana passed an abolitional legislative resolution in 1830 and revoked it in 1846. Also in 1846 Michigan abolished capital punishment for all crimes but treason; in 1853 Wisconsin abolished it absolutely.