Cruel and Usual

1.

The death penalty was already falling into disuse in the United States when the Supreme Court ended it in 1972. There had been no executions for five years. Death houses were still filled with candidates, but the old zest for sending convicts to the gallows, the chair, and the gas chamber seemed to have waned. State governors, whose duties include the macabre obligation to sign death warrants, were increasingly finding reasons to commute capital sentences to life imprisonment or to grant extended delays of execution. What Justice Harry Blackmun called the “machinery of death” had come to a slow idle.

Then something happened. By the middle of the 1970s there was a rising public clamor for capital punishment. Politicians were discovering that pledges to be “tough on crime” worked like catnip on voters, and who could be “tougher” than the candidate howling for the death penalty? Mr. Dooley was not joking when he said the Supreme Court follows the election returns; by 1976 it had decided that capital punishment was not “cruel and unusual” after all; executioners came back to work.

Nowadays American devotion to capital punishment is such that only the most foolhardy governor would dare confess that signing a death warrant doesn’t make him sleep better. Periodically congressmen call attention to their “toughness” by discovering more federal crimes that require capital punishment. Periodically politicians denounce the entire legal system for making it hard to clear out the death houses with dispatch. Recently a Missouri man nominated for a federal judgeship was blocked by his state’s Republican senator, John Ashcroft, because of a “poor record on the death penalty.”

Professor McFeely, the biographer of Frederick Douglass and General Grant, found himself performing in this Grand Guignol when he was asked to testify in the Georgia sentencing trial of a man convicted of kidnapping, rape, and murder. A distinguished historian, McFeely had been opposed to the death penalty on philosophical grounds, but “proximity” to a man very likely to die in the electric chair seems to have produced an emotional loathing for it.

His short book is a tribute to the Southern Center for Human Rights, a small band of lawyers based in Atlanta, and especially to Stephen Bright, who is not their leader but the “first among equals.” Their goal is to save clients from “the ultimate expression of violence,” which, in McFeely’s phrase, is “the state killing its own people.” Because of work like theirs, years often elapse nowadays before a court’s sentence of death is carried out. The average time between conviction and execution in Georgia is over eight years. One of the center’s clients whom McFeely met was still in prison eighteen years after being sentenced, and his case still in court on appeal.

Bright and his colleagues are people whom the steamier proponents of capital punishment love to hate: lawyers who use what Senator Orrin Hatch calls “frivolous appeals” to impede swift exaction of the state’s “awful vengeance.” Why do they do it?…


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