The Undying Problem Of The Death Penalty


Other states tried to deal with the problem by giving the jury power to recommend against death. It became common also to classify murder by degrees. Typically, first-degree murder entailed not only malice—unjustified killing—but also premeditation, defined, not very helpfully, as reflection, even if for only a few seconds, followed by the decision to kill and then by the killing. In essence, the jury could decide life or death according to its own view of the facts, and in all cases, of course, the jurors retained the unsanctioned but uncontrollable right to disregard even compelling evidence and acquit: jury nullification. As Holmes said in another context, jurors can “let a little popular prejudice into the administration of law (in violation of their oath).” Indeed, repeated demonstrations of jurors’ reluctance to render a verdict that would mandate the death sentence led, as early as the 1830s, to an editorial lament in a Rhode Island newspaper with an unintended irony: “Unless the prisoner, from his color or extraction, is cut off from ordinary sympathy, he is almost sure of an acquittal.”

The fact is that, historically, we have never regarded the death penalty placidly. Curtis Bok, a judge in Pennsylvania on both the trial and the appellate benches, once asked, “Why is the State so ashamed of its process that it must kill at dead of night in an isolated place and on an unnamed day?” The man who pulls the switch generally stands hidden from everyone’s view. When Storti died, the press account pointedly noted the anonymity of the executioner. Even when death comes by a firing squad, the round in one of the rifles is blank, presumably so that no one will know for certain that his was a fatal shot.

The death penalty provokes in us dreadfully conflicted feelings, beginning with recognition of the need for a fair procedure in determining guilt and imposing punishment. Like Francis Bacon four centuries ago, we know that “revenge is a kind of wild justice, which the more man’s nature runs to, the more ought law to weed it out.” Thus we recoil from lynch law, either in fact (Leo Frank and Emmett Till) or in fiction ( The Ox-Bow Incident ).

Yet even as we insist on due process, we express impatience with the inhibitions that fair procedure imposes. In part an appellate court’s role is to restrain the mob spirit; still, what judges see as ensuring constitutional and legal rights, the public and the victim’s family often denounce as legal technicalities. Certainly, when a client’s life is at stake, a good, honest lawyer will try every available argument, just as Storti’s did. Hope does ever bloom; remember, too, what Samuel Johnson once advised Boswell: “An argument which does not convince yourself, may convince the judge to whom you urge it.” It was also Johnson who said, “When a man knows he is to be hanged in a fortnight, it concentrates his mind [and, one might add, his lawyer’s mind] wonderfully.”

Counsel’s ingenuity and desperate effort do not always sit well with the appellate courts. Justice Brewer’s impatience with Storti has found echoes in our own time, when Supreme Court justices have expressed similar unhappiness with not only defendants and lawyers but also some lower court judges. Nonetheless the Court as an institution and the justices themselves have found the implications of the death penalty not so easy to fathom. Furman v. Georgia , the 1972 decision that for a time eliminated executions in this country, produced no fewer than nine separate opinions, one per justice: five concurring with the one-page anonymous per curiam order, four dissenting. Two of the “majority” justices thought the death penalty cruel and unusual punishment per se; the others thought it unconstitutionally disparate in its effects: Most of those executed were poor, young, ignorant, and perhaps the victims of racial discrimination.

If, as storti’s attorneys suggested, the mere causing of mental pain amounted to “cruel and unusual” punishment, no form of execution could ever pass constitutional muster.

Eight years later, when the Massachusetts Supreme Judicial Court struck down the commonwealth’s new Furman -shaped death penalty statute, it condemned the psychological agony inherent in the punishment, directly refuting Holmes’s tough words to Storti. “Mental pain,” Chief Justice Edward Hennessey wrote, quoting Justice Brennan in Furman , “is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” Of course, part of the waiting period results from the drawnout appellate process.