CONDEMNING CAPITAL PUNISHMENT
From the high court to the front lines, a case against the death penalty
By Charles Coe
Against the Death Penalty:
The Relentless Dissents of
Justices Brennan and Marshall,
by Michael Mello,
Northeastern University Press,
210 pages, $45.00
Death at Midnight:
The Confessions of an Executioner,
by Donald A. Cabana,
Northeastern University Press,
193 pages, $24.95
For decades, capital punishment has been the subject of heated and often
bitter debate within the legal community. Inevitably, the Supreme Court
of the United States has been at the center of the contention. In the early
1960s, NAACP Legal Defense Fund attorneys arguing before the Supreme Court
secured stays on the use of the death penalty in all states, which the
court overturned in favor of execution in 1971. The next year, however,
in Furman v. Georgia, the court curtailed the use of the death penalty
by nullifying Georgia statutes that gave complete discretion to a sentencing
judge or jury in deciding whether to execute prisoners.
Finally, in 1976, an aggregation of cases from five states, Gregg v. Georgia,
was submitted to the Supreme Court to test once and for all the constitutionality
of capital punishment. After much review and debate, the justices decided
by a seven-to-two vote that the death penalty did not violate the Eighth
Amendment's prohibition of "cruel and unusual punishment" and
was therefore permissible. Since that time, 242 people have been executed
in the United States.
Capital punishment nevertheless remains under determined attack. Two recent
releases from Northeastern University Press offer opposition from very
different but equally compelling perspectives. In Against the Death
Penalty: The Relentless Dissents of Justices Brennan and Marshall,
legal scholar Michael Mello explores the historical, jurisprudential, and
strategic aspects of the antagonistic stance taken by former Supreme Court
Justices William J. Brennan Jr. and Thurgood Marshall toward the majority
opinion. Mello, a law professor at Vermont Law School, is a specialist
on the death penalty who has been a counselor-at-law in more than fifty
capital punishment cases.
Mello begins by describing how the early experiences of the two justices-even
back to their childhoods-formed their legal and philosophical views. Justice
Brennan, the son of a union activist, once saw his bloodied father carried
into the house after being beaten during a labor dispute. According to
Mello, that moment was "an early lesson in the abuse of state power."
While serving on the Supreme Court from 1956 to 1990, Brennan consistently
espoused the belief that government had no right to take a life. In his
view, "The most vile murder does not . . . release the state from
constitutional restraints on the destruction of human dignity."
The late Thurgood Marshall, having seen lynchings firsthand while working
as a civil rights lawyer in the South, shared Brennan's belief that the
death penalty involved cruel and unusual punishment. He also scoffed at
the notion expressed by death penalty advocates that criminals were deterred
by the prospect of execution, believing that hardened criminals often considered
themselves "smarter than the cops" and never expected to be caught.
Marshall, who was an associate justice on the Supreme Court from 1967 to
1991, liked to point out that pickpockets in seventeenth-century England
roamed the crowd to lift wallets from spectators "even as a pickpocket
was being hanged in public."
Between 1976 and 1991, Brennan and Marshall issued more than 2,500 dissents
in capital punishment cases. Their writings on the subject, Mello says,
"were critical in providing guidance and information to death row
and its lawyers about what kinds of issues the justices might be interested
in considering at some future time." These dissents fell into two
categories: Sometimes they asserted that capital punishment was unconstitutional
per se. At other times, they maintained that even if capital punishment
were constitutional, it had been wrongly applied in a particular case because
of procedural inconsistencies in the trial or some other factor.
Brennan and Marshall strongly disagreed with the position that the death
penalty is defensible simply because the U.S. Constitution does not prohibit
it. They asserted that the Court should treat the Constitution as a living
document, not a relic. According to Brennan, those who assume modern jurists
can infallibly interpret how the Framers would respond to modern issues
"turn a blind eye to social progress and eschew adaptation of overarching
principles to specific contemporary issues."
Brennan and Marshall also believed that the death penalty was applied unfairly
to certain groups. This is a strong argument; statistics show that blacks
are four times more likely than whites to be executed. The disparity rises
when the murderer is black and the victim white. Both justices felt that
class played an inordinate role in juries' decisions to assess the death
penalty, sharing the view of their fellow Justice William O. Douglas that
"one searches in vain for the execution of any member of the affluent
strata of our society."
Mello acknowledges the cogent opposition to Brennan's and Marshall's views.
For example, many legal scholars agree that capital punishment has been
unfairly and inconsistently applied, but they reject the notion that such
inequities are inherent features of capital punishment. They would work
to reduce those biases while maintaining that society has a right-as well
as a responsibility-to employ capital punishment appropriately.
Against the Death Penalty analyzes a complex and problematic issue
in an engrossing, readable way. Mello's insightful comments on the lives
and philosophies of Brennan and Marshall, along with his in-depth, behind-the-scenes
look at the workings of the U.S. Supreme Court, make this book a must-read
for anyone with more than a passing interest in the subject.
Where Against the Death Penalty takes a long view through the lens
of a legal scholar, Donald A. Cabana's Death at Midnight: The Confessions
of an Executioner opposes capital punishment at ground level-that of
a prison warden who gave the orders to end two lives. Cabana, a 1972 graduate
of Northeastern's College of Criminal Justice, started his twenty-five-year
career in corrections at the Massachusetts state prison in Bridgewater.
He moved from prison to prison, rising through the ranks to become warden
of the Mississippi State Penitentiary in Parchman. As was true with many
of his colleagues in corrections, Cabana believed that "if the government
deemed capital punishment necessary then it must be so." That he would
someday oversee an execution was the farthest thing from his mind. Mississippi
had not put prisoners to death since 1967.
But in 1987, the unthinkable became a reality: the state attorney general
set an execution date for Edward Earl Johnson, who had been convicted of
shooting a town marshal. As one who had spent virtually his whole adult
life working in prisons, Cabana had no particular sympathy for Johnson,
who allegedly had "denied another man the chance to share life together
and grow old with his wife, to experience the joy and pride of watching
his children grow up."
Yet as Johnson's execution day approached, Cabana began to feel doubt about
his own participation. He was able to complete the task only by convincing
himself that he was just doing his job. But the second execution, that
of a young man named Connie Ray Evans, would bring about "his personal
moment of truth." Cabana had gotten to know Evans, had even become
his friend. Although Evans admitted to murder, he was deeply remorseful.
Cabana saw Evans's change of heart as evidence of the worth of his soul
and believed that he should be allowed to live, even if imprisoned for
life. Cabana fought to secure a pardon for Evans, without success. In the
end, he could only watch as the man "heaved against the leather straps,
his lungs trying desperately to gulp something besides the deadly gas that
enveloped the entire chamber in a dense cloud." Thereafter, Cabana
decided he could not supervise another execution and left Parchman to teach
criminal justice at the University of Southern Mississippi.
Cabana writes with compelling honesty and the skill and dramatic sense
of a novelist. As his narrative bounces back and forth between his early
days in corrections to his later years as a warden, a dramatic tension
builds that lends great emotional impact to the story's pivotal events.
Whether one agrees or disagrees with the objections to capital punishment
raised by Donald Cabana and Michael Mello (and Justices Brennan and Marshall),
it's impossible to ignore the credibility, insight, and moral passion they
bring to this difficult and divisive topic. One need not read between the
lines in either book to realize that all four men view or viewed capital
punishment as an assault on the symptoms of society's ills rather than
a search for cures. Cabana makes what may be the most powerful argument
against capital punishment: "Only when we become serious about fighting
poverty, child abuse, drugs, and a host of other scourges will we begin
to make serious inroads on [dealing with] violent crime."
