Editorial | Notebook The Death Memo By JESSE WEGMAN Published: August 24, 2013 Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America. It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor. But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution. “He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race. Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it. More than 1,300 people have been executed since, but the rate has fallen over the last decade. Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall. Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas. But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds. Justice Harry Blackmun struggled with the question until shortly before his retirement, when he wrote in dissent that he would no longer “tinker with the machinery of death.” Justice Lewis Powell said in a 1991 interview that the death penalty “brings discredit on the whole legal system” and should be abolished. And in a 2008 case upholding the method of lethal injection, Justice John Paul Stevens concurred out of respect for court precedent but characterized capital punishment as “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.” Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.” So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.” Meet The New York Times’s Editorial Board »
Posted on: Sun, 25 Aug 2013 04:19:06 +0000
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