Death Penalty today and freakishness and life without the possibility of parole and gregg v. Georgia and 1976

I suggested at the close of the previous essay that sociologists played a crucial role in the abolition movement in the 1950s-1960s. Sociology as an academic discipline goes back to the turn of the 20th century, but as a disciplined, statistically-oriented, data-collection method of operation it only emerged after WWII. For example, a recent biography by sociologist Leonard Cain of a leading American sociologist in the WWII era, Austin Porterfield of Texas Christian University, shows that Porterfield had to rely mostly on theory and his own Christian social gospel philosophy even as he devised the first surveys to gather data about self-reporting of crime. That is, until the late 1940s, the data available to sociologists in order to give them confidence in making social policy recommendations was, as they like to say, "primitive." But once the 1950s dawned, there was a whole cadre of young, bright, optimistic, highly-trained men who believed deeply that the design of surveys, the gathering of information and the sifting of that data would and should be of vital importance in shaping public policy debates.

The first harvest of this data with respect to death penalty statistics was written by Hugo Bedau [The Death Penalty in America], then at Reed College in Portland, OR, and published by Oxford University Press in 1964. The "data" collected by Bedau and others showed that long-standing fears of recidivism of death-sentenced people were groundless, that the death penalty didn't deter people from committing homicides and that the death penalty was, in fact, an anachronism in our modern world. When legislatures, courts and the educated elites in America (recall that less than 10% of the population had college degrees in the 1950s) read these "scientific" studies by newly-minted Ph.D., their first reaction was to adopt the conclusions of experts as their own conclusions. Thus, when the US Supreme Court abolished the death penalty through invalidating an as applied challenge to a GA statute (it violated the "cruel and unusual punishment" clause of the Eight Amendment), it was placing itself in the center of the "data-flow" of the 1960s with respect to the death penalty in America.

But (and I am still on my FIRST point!), note what the Supreme Court actually did in the Furman decision. It stated that the death penalty, as applied, was cruel and unusual punishment in violation of the 8th Amendment to the US Constitution. What it did NOT say was that the death penalty was unconstitutional. As a matter of fact, what their decision did was to encourage proponents of the death penalty to go back and write "better" statutes, that is, laws that conformed to the guidelines given by the Justices in their opinions. The concern for the next four years was to draft statutes that would deal with the issue of "freakishness." Dolled up in legal language, this meant that legislatures would devise statutes that would "limit jury discretion" in death penalty cases.

II. The Death Penalty Takes Hold Again

So, in the next four years (from 1972-76) there was a flurry of activity to try to draft death penalty statutes that would conform to the Supreme Court's requirements. Two types of statutes emerged, though one of the types had various permutations. Both types of statutes tried to mimimize jury discretion by instituting "bifurcated" trials in death penalty cases. That is, the jury first would determine the guilt of the defendant. Then, in a separate penalty-phase proceeding, they would assess whether the defendant should be subject to a death sentence. By bifurcating the process, the adherents of the penalty were trying to show that "dispassionate" justice could be achieved.

The more popular type of statute that emerged was a law requiring juries to consider "mitigating or aggravating" evidence in the penalty-phase part of the trial. Anything from the defendant's past that would help mitigate or even aggravate the extent of the crime would be weighed before a jury passed on the sentence. The second type of statute, adopted by Texas, required the jury to answer three questions affirmatively about the defendant, the most crucial one being the so-called "future dangerousness" question. If the jury believed that the defendant would pose a continuing risk to people, then the death penalty was appropriate. [In my judgment this is a lower threshold than the mitigating/aggravating statute permitted. I don't think this alone is responsible for so many death sentences and executions in Texas but it certainly contributes to it].

In 1976 these two types of death penalty statutes (and a variation on the mitigation/aggravation type) returned to the US Supreme Court in the Gregg v. Georgia case. The "Texas-style" statute was considered by the Court in 1977. The Court held each one of the statutes constitutional. Thus, executions, which had been on hold in America since 1968 (when all states became aware that the S Ct was going to rule on the issue of the constitutionality of the death penalty), resumed in 1977 with Utah's Gary Gilmore holding the dubious distinction of being the first man executed after the 9 year hiatus in executions. The proverbial flood gates then opened over the next few decades, as hundreds of men, and a few women, were legally executed.

III. Initial Attempts to Stem the Executions

The 1980s, then, saw the return of the death penalty in very visible ways. The victims' rights movement, which gathered steam in the 1980s, also contributed to a backlash against the liberal jurisprudence and sociology of the 1960s. Politicians who ran for office were of two types: "tough on crime" and "tougher on crime." No longer would America "coddle" criminals. Three strikes and you are out. The death penalty was perhaps the most visible way for people to vent their frustration at a criminal justice system that was, seemingly, so understanding of the plight of criminals that it completely ignored the cries for justice of victims as well as the need for society to be protected and assured of safety. Because there was not enough data in the 1980s to show if the problem leading to the Court's throwing out the death penalty in 1972 had reoccurred ("freakishness" or race-disproportionate executions), abolitionists were on their heels and couldn't really counteract the crushing weight of proponents of the penalty.

But there was one often-ignored legislative action taken by almost all legislatures in the 1980s that really would have a long-term effect on the debate, even though that effect is not yet seen. It was the introduction of a the penalty of life imprisonment without the possibility of parole. When the death penalty statues were adopted in the late 1970s, juries had two choices in a capital case: death or "life" imprisonment. But, in most states, "life" imprisonment usually meant that you were eligible for parole in anywhere from a decade to 25 years. Thus, in fact, a "life" sentence might only be a sort of temporary penalty until the capital offender was free to offend again.

You have to go on to the next essay to see how it all works out!