This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.
Justice Thurgood Marshall, 1986
"Death is different," Supreme Court Justice Thurgood Marshall is often quoted as saying. Justice Marshall's quotation above, from his 1986 opinion in Ford v. Wainwright (citing earlier language in the 1976 case of Woodson v. North Carolina) came toward the end of a distinguished legal career more than half a century long--a career as a litigator and judge that many times brought him face-to-face with the issues of capital punishment as practiced in twentieth century America.
One such encounter happened early and made a lasting impact. As a young defense attorney in Maryland, Marshall lost a death penalty case in which the defendant was a high school classmate. The man was hung in Baltimore on August 8, 1936. Marshall had planned to attend the execution but backed out, saying later the experience profoundly affected his views.
Early in Thurgood Marshall's legal career, the death penalty was frequently used, not only legally but also often extralegally as well. Lynchings were popular public events in the South through the 1930s. The number of legal executions in America reached a peak in the 1930s, averaging almost 170 per year. In the 1940s it declined to 130, and in the 1950s declined even more sharply, averaging only 70 executions per year for the decade as public support for the death penalty began to wane.
Executions ceased altogether after 1967 as we awaited a definitive Supreme Court case that would decide whether or not the death penalty per se constituted "cruel and unusual punishment" under the Eighth Amendment. When that decision finally came, in 1972's Furman v. Georgia, the answer was a resoundingly equivocal "maybe," leading to the follow-up decision of Gregg v. Georgia four years later, which said the death penalty was all right after all, provided certain procedural standards were followed.
The timing of this decision was critical. It gave the Supreme Court's stamp of approval to the death penalty just as America's high rate of violent crime was generating political heat for tougher anti-crime measures. Rehabilitation was out, punishment was in. And so it would remain through the rest of Thurgood Marshall's tenure on the Supreme Court.
For two decades, from his 60-page concurring opinion in Furman until his sharply-worded dissent in Payne v. Tennessee, decided on June 27, 1991, the day before he announced his retirement, Justice Marshall adamantly opposed the death penalty. His position can be summed up in four main points:
1. The death penalty is not a deterrent.
2. As retribution, the death penalty is inappropriate to a civilized society.
3. Innocent people will invariably be executed.
4. The death penalty cannot be consistently applied.
Justice Marshall was also mindful that defendants most likely to be sentenced to death were both socially and legally disadvantaged. "Cast aside today are those condemned to face society's ultimate penalty," he wrote in Payne, which overruled an earlier decision disallowing prosecutors' use of victim impact evidence.
"Death is different," Justice Marshall persisted until the end, and anyone who has worked on either side of a death penalty case would likely agree. But, aside from arguments against capital punishment, how is the death penalty different in practice? Why do death penalty cases stand out so conspicuously in the American legal system of today?
1. To start with, someone was killed. When Justice Marshall began his legal career as an attorney in 1933, several non-fatal crimes, including most often kidnaping, treason, rape and carnal knowledge, and robbery, could also result in death sentences. This practice ended with the Supreme Court decision in Coker v. Georgia (1977), in which the court ruled that the death penalty was inappropriate in the non-fatal rape of an adult woman. Some states have kept the death penalty on the books for non-homicide offenses, and Louisiana recently brought back the death penalty for the aggravated rape of a child under the age of 12, but in fact everyone on Death Row in the United States today is there for murder.
All death sentences result from criminal events in which at least one human being was killed. And not just any homicide will qualify. The crime, labeled a first-degree or capital or aggravated murder, most often involves a felony against the person, such as robbery or rape, though the 38 death penalty states may define the death-deserving circumstances in various ways --often covering certain classes of victims, such as children, the elderly, police officers and prison guards, killings for hire, and those involving multiple victims with special provisions.
No two states have exactly the same laws defining the death penalty offense. The general perception is that the death penalty is the right punishment for the "worst" murders, which means in practice the highly visible, often shocking offenses in which extreme violence is used by strangers against innocent victims. They are crimes that attract public attention and stir public sentiment against the offender.
Most homicides, as crimes of passion between relatives and friends, do not fit into this category. Even in the South, where the death penalty is pursued most vigorously, no more than about 20 to 25 percent of homicides are actively prosecuted as capital cases. In other states, typically fewer than 5 or 10 percent of homicides would pass muster to enter the courts as capital cases. Applying to no more than 2,500 to 3,000 possible cases a year nationwide, then, the death penalty is different from the start in the narrow definition of its applicability.
2. The death penalty involves defendants who almost universally have the deck stacked against them--poor, mentally slow or disturbed, prior felons, victims of extreme physical and sexual abuse, transients, the outcasts of society. Glenn Bieler reports the results of a clinical study of juveniles (under 18) sentenced to death:
The study found many similarities between these young offenders. Background histories included difficulties at birth, head injuries, illnesses, drug overdoses known to affect the central nervous system, loss of consciousness, fainting, blackouts or other lapses, and seizures and symptoms suggestive of psychomotor epilepsy. All fourteen juveniles exhibited psychiatric disturbances of some sort. Twelve of the 14 subjects also had IQ scores below 90.
The study concluded that: the multiple battering suffered by these youths sometimes caused actual brain damage which resulted in increased impulsiveness; the severe parental violence functioned as a model for the youth's abnormal behavior; and the extreme brutality to which the youth was exposed promoted rage which was displaced onto other individuals in their environment.
Although the study Bieler cites focused on juveniles, visitors to Death Row would find most of these characteristics apparent in adult offenders as well. They would also observe another striking feature of Death Row inmates: they are almost universally poor, a condition with enormous impact on the quality of their legal defense. Bob Egelko, writing about California's Death Row, pointed out that every one of the 384 men and four women awaiting execution on July 1, 1994, had been represented by a public defender at state expense.
This is not to say that indigent defenders generally do a bad job of defending capital cases, but it is much more likely to find incompetent or "no-care" counsel representing indigents in capital cases. It is also true that even competent counsel are often handicapped by lack of investigative assistance, mitigation experts, and other resources available to defendants with money. And capital defendants, not placing much trust in their state-appointed attorneys, can be very uncooperative clients, further aggravating their disadvantaged legal status. The capital trial of an indigent is very different from the capital trial of a middle or high-income defendant, and the results are often completely different.
3. Death penalty cases are the most visible illustration of the role of discretion within the legal system. In other cases, when decisions are made about charges and penalties, the questions deal with options to prosecution, the amount of the fine, the choice between probation and imprisonment or between jail time and prison time, and the length of the prison term. In a capital case, the decisions made can amount in the end to the difference between life and death.
The "gatekeeper" function of the prosecutor is well-known. The popularly-elected district attorney determines if a death penalty will be sought. Relying on a combination of personal belief and political advantage, some prosecutors seek the death penalty just as adamantly as Justice Marshall opposed it. Others seek it rarely or not at all.
Trial court judges and appellate judges make critical decisions about evidence, venue, jury selection, and other issues. A trial judge who is determined to bring in a death penalty (as defense counsel, you know you are in trouble when the judge refers to the prosecution as "we") can do a lot to make this happen, even knowing he may be overturned years down the road.
The jury's role is obviously critical. In most death penalty states, the choice between life and death is theirs alone. Locale, culture, gender, and race are important background variables, and the jury dynamics during deliberation make the difference between life and death in many cases.
Combining prosecutorial, judicial, and jury discretion, a very mixed-up pattern emerges. The Furman formula for achieving valid death sentences stresses proportionality within each state, but in practice some jurisdictions within a state will have a disproportionately high number of death sentences, while others will have a disproportionately low number.
Using Louisiana as an example, Orleans Parish has about five times as many homicides annually as each of the three next largest parishes--Jefferson, East Baton Rouge, and Caddo. But in the decade of the 1990s, Orleans has given 12 death sentences, while East Baton Rouge has given 15, Jefferson 9, and Caddo 6. Fewer than half the parishes in the state have given anyone a death sentence in the past two decades; only 14 parishes (of 64) have given more than two.
James Liebman, a law professor at Columbia University, said in a 1995 New York Times article, "Lots of states have death belts. In southern Georgia, there are lots of death sentences; in northern Georgia, there aren't. In Tennessee, there are tons of death sentences in Memphis and East Knoxville, but not in Nashville." The same article points out that of 254 counties in Texas, only 42 had sent any inmates to Texas's Death Row, and half of those only one. Almost a third of Texas's Death Row came from one jurisdiction--Harris County--where prosecutor Johnny B. Holmes is famous as the "deadliest prosecutor in America."
4. Death penalty cases are a lot of trouble for attorneys to take to court. Whole separate legal specialties have developed to prosecute and defend death penalty cases. Attorneys on both sides attend seminars to share the tricks of their trade--seminars at which opposing counsel are not welcome. Inches-thick manuals prescribe the case law, the procedures, the legal forms, and the maneuvers to prosecute and defend death penalty cases.
One North Louisiana prosecutor, recognized as an able and experienced death penalty attorney, now hires out as a "special assistant district attorney" in other parishes where prosecutorial expertise or enthusiasm is lacking. Traveling from parish to parish to prosecute capital murder cases, he has become a sort of roving ambassador for the death penalty in North Louisiana.
Death penalty procedural law has become so highly technical that most attorneys lacking extensive criminal law experience could not hope to do a competent job as either a prosecutor or defense counsel in a capital case. An American Bar Association report concluded that "put simply, there are relatively few attorneys who are competent to try capital cases." The report was addressing defense counsel, who are often "underskilled, unprepared, and underpaid," but the work is no easier on prosecutors.
Death penalty work requires a mass of technical knowledge, several years of adversarial apprenticeship, and the capacity to put in hundreds or thousands of hours--common estimates of the attorney's time required to prepare one capital case for trial range from 500 to 2,000 hours or more--to get ready. Death penalty work also requires accepting the moral responsibility that, whether prosecuting or defending, someone's life is in your hands.
Many attorneys, especially defense counsel, do not want to work under this kind of pressure. Small wonder than most defense attorneys who do much death penalty work tend to do primarily (or almost exclusively) death penalty work: their practice does not allow them time for another field of legal expertise.
5. The death penalty trial itself, when it finally arrives, is long, complicated, expensive, and fraught with possibilities of reversible error. The legal complications are the continuation of the pre-trial preparation already described, aggravated by the pressure of courtroom give-and-take, where a brief mental lapse or a slip of the tongue may cause a mistrial or a whole new trial on appeal.
Jury selection, which most defense counsel prefer be done in small panels or in individual sequestered voir dire, is the longest part of the trial--a week in many routine capital cases, two weeks or more in the most highly publicized cases. Judges are called upon to discharge or retain particular prospective jurors. The ideal capital juror must be willing to impose a death sentence, but not automatically so; he or she must be willing to impose a life sentence if it is deserved.
The positions seem clear-cut, but jurors' responses are often anything but clear, ranging back and forth across the spectrum of positions depending on the direction of the leading questions they are asked by prosecution and defense counsel. It is also a truism of capital voir dire that some jurors may lie, in either direction, more likely to get off the jury but sometimes to get on. Judges may retain jurors whom the defense wants excluded, or exclude jurors the defense wants retained: either action can be the cause of reversible error and frequently is.
Picking the jury is expensive. In the Alvin Scott Loyd retrial discussed below, selecting and sequestering the jury for the three-and-a-half week trial cost an estimated $29,000 (equivalent to the cost of two years in the state penitentiary). Other expenses include fees for two defense attorneys, fees for prosecution and defense expert witnesses, which in cases involving issues such as DNA, mental illness, retardation, brain damage, and substance abuse can be considerable, expenses for the lay witnesses for both sides, and overtime for court and security personnel.
How much does a death penalty trial cost? An ordinary trial in the South, where two-thirds of all capital trials occur, may cost $100,000 to $250,000. Margaret Gorey calculated a minimum of $500,000 to complete a capital case in California in the 1980s. At about the same time, New York, which was then considering adopting the death penalty, estimated the cost would be $1,828,000 per capital trial.
And the trial is, as they say, just the tip of the iceberg. The appeal through state and federal courts is likely to be several times more expensive--more attorneys' fees, lots of copying of legal documents, more expert witnesses, extra hearings, travel costs, and ultimately the execution itself, which is actually the cheapest part of the process.
If a true-life sentence of 30 to 40 years in prison is estimated to cost a million dollars (according to the National Council on Crime and Delinquency), recent estimates of the cost of a death sentence range from twice to seven times that figure, depending primarily on the estimated costs of attorneys' fees within the state.
Phillip J. Cook and Donna Slawson, who studied the total costs of every death penalty case in North Carolina over a two-year period, concluded that taking a death penalty case to execution cost $2.16 million more than imposing a 20 years to life sentence. The state of Florida estimated that it cost about $3.17 million each for the 18 men it executed in the 1980s. And one of them, serial killer Ted Bundy, was estimated to have cost far more--in the range of six to seven million dollars.
Between 1973 and 1996, exactly a third of all death sentences have been overturned on appeal, sending those cases back for fresh trials. And incurring the extra expense of re-prosecution. When Kansas was considering reinstating the death penalty a decade ago, political officials agreed it was cheaper not to have the death penalty, although this economic decision would later be outweighed by the political decision to reinstate the death penalty anyway. The sentiment in the legislature was that it ought not be used too much, because of the expense, but that the extra expense was worth it in some instances.
6. Death penalty cases provide the only two-part criminal trial commonly seen in our legal system today. The trial is divided into separate guilt and penalty phases. This almost always means today two defense attorneys, one for each part, and two separate campaigns, one involving issues of guilt or innocence, the other mitigation of sentence. The campaigns may be connected by theme or theory, or they may not, but jury unanimity is required in both parts for a death sentence.
The guilt phase is a conventional criminal trial. If the jury returns a verdict of guilty to capital murder, then the penalty phase begins. The penalty phase is essentially a sentencing hearing, in which the prosecutor provides evidence that the defendant deserves a death sentence and the defense counsel counters with evidence showing the defendant deserves life.
The penalty phase presents aggravating and mitigating circumstances for the jury's consideration. The prosecution's aggravating circumstances might typically include such elements as:
1. the heinousness of the crime, which might focus on torture, suffering, special cruelty, or other evidence of meanness.
2. the offender's prior criminal record and other non-adjudicated "bad acts."
3. victim impact evidence, which is usually directed at allowing relatives and friends to testify (without showing excessive emotion) that the victim was loved and will be missed.
4. future dangerousness, which goes into the defendant's personalty and past history, leading to a prediction of future violent behavior.
The defense presentation of mitigating circumstances if often more wide-ranging. Indeed, "there is an almost unlimited right to present evidence in mitigation," the Louisiana Death Penalty Defense Manual says. The controlling U.S. Supreme Court case here is Lockett v. Ohio (1978), which said the jury must consider "any aspect of the defendant's character or record ... that the defendant professes as a basis for a sentence less than death."
Article 905.5 of the Louisiana Code of Criminal Procedure lists eight mitigating circumstances:
1. no significant prior criminal history.
2. the defendant's extreme mental or emotional condition at the time of the crime.
3. the defendant was under the domination of another person.
4. moral extenuation for the defendant's act (which makes you wonder how the jury could have found him guilty of first-degree murder in the first place).
5. mental disease or defect or intoxication.
6. the offender's age.
7. lesser participation in the act.
8. any other relevant mitigating circumstance.
It is the last general criterion that allows the defense to bring in the broadest possible mitigation evidence, including the defendant's family history, school and work records, jail and prison records, religious activities, suitability for life imprisonment, capacity for rehabilitation--practically anything bearing on the defendant's past or future life that might influence the jury's decision.
Because many capital trials involve defendants who are obviously guilty of capital murder, the penalty phase is often the more important part of the trial--the defense's whole effort is directed toward convincing the jury that a life sentence is appropriate. The critical nature of the penalty phase has led some death penalty defense counsel to take specialization one step further: they become experts in penalty phase mitigation.
7. The moral condemnation attached to a death sentence marks the offender for life. The meanest thing human beings can say to another human being is, "We've decided you ought to die," with the legal power to carry out their wishes.
Craig Forsyth and Burk Foster discussed the moral position of the death-sentenced inmate in an article a few years ago:
If the crime must be an affront to whatever is left of universal human values, the offenders singled out for the death penalty, in our perspective, have by definition excluded themselves from the pale of humanity. Their lives are ordered forfeited to the state not only because of the gravity of their offenses and their own blameworthiness--for what they have done and for who they are--but also for what they represent. They are held in public as the worst humanity has to offer.... They are given death sentences as examples to the rest of us of the absolute worst the system may do to a deserving criminal offender.
Their eventual deaths, years down the road, are intended to have salutary effects on us, by showing us their offenses are "off limits." The result is not cause-and-effect deterrence, but rather disavowal. They have, in effect, taken the scale of equivalency into a different plane, one in which normal human concerns do not apply. What they represent, symbolically, is the ultimate evil, a level of meanness to which only one in a million might aspire. They are killed to make the rest of us feel better.
Other writers have described at greater length the symbolic meaning of the death penalty. Rather than deterrence, rather than retribution, rather than incapacitation or any other possible objective, the death penalty thrives in America today as a symbol. It is the political sign of a public willingness, a public urge in many instances, to take a tough stand in fighting crime. A juror in a recent death penalty case in Baton Rouge summed up the jury's attitude: "I felt like I had to do it as a service to the families and the community." A death sentence as a public service? Why? To show that they had the guts to tell the murderer not just, "We think you are a bad person," or, "We think you have done a terrible crime," but rather, "Our sense of community demands that we kill you."
Political officials latch on to the death penalty as one more weapon in their arsenal of practical tools to enhance their own political power. The message they sell to the public is: "I promise you I will see someone pays for this heinous crime." It may not be the one who deserves it the most. The evidence may not be strong enough to support a death sentence in this case. But someone down the line will pay. To a society terrified of violent crime and determined to get even with violent criminals, what matters is not that all murderers be executed, or even that the right murderers are executed; what matters is that some murderers be executed. The people put to death really should not take it personally (though the verdict is personal in the sense that it is based to some extent on the aggravating and mitigating circumstances discussed above).
Death-sentenced inmates should see themselves as symbols in a larger struggle; they should see the whole capital punishment controversy in symbolic terms. We reserve the right to almost randomly select a few scapegoats from a vast pool of murderers--and eventually put some of them to death--just to show we have not lost our will in the war on criminal violence. Their deaths have no real impact on crime; they only show that we still mean business. We like capital punishment because it is tough, direct, and easy to understand. In the search for simple solutions to crime, the death penalty leads the way.
8. It's not over when it's over. People who expect closure at the end of the trial are mistaken. The appellate process through state and federal courts currently averages about 10 to 12 years, but it can go on indefinitely. The most recent Bureau of Justice Statistics annual bulletin, "Capital Punishment 1996," identifies three men sentenced to death in 1974 who were still on Death Row at the end of 1996, 22 years later. One hundred thirty-three people had spent more than 15 years on Death Row, according to the report.
When Alvin Scott Loyd was tried for the third time in Louisiana's Vermilion Parish in July 1998 (for the rape/murder of a three-year-old girl in St. John the Baptist Parish in 1981), he had already been on Death Row for 15 years. The third time the jury deadlocked and he was given a life sentence. If he had been given another death sentence, he would have gone back to Death Row, with a new appeals clock ticking, to wait another 10 to 15 years before he was executed. Committing the crime at age 26, Loyd would have been pushing 60 before his life on Death Row came to an end.
Contrast this with the case of William Hamilton, an 18-year-old black youth from Shreveport. He raped (but did not kill) a nine-year-old white girl in a Shreveport park on September 29, 1942. Sixty-five days later, on December 3, he was electrocuted in the Caddo Parish Jail. Not everything moved slower in the old days.
Delays take their toll on the members of the legal system and families and supporters of both victims and defendants. Both sides have to wait out an emotionally draining, seemingly interminable process.
The trial ending in the death sentence is merely "the end of the beginning," as Winston Churchill said. "We're glad this is over," victims' families often say when the death verdict is brought in. "We're looking forward to the execution."
But the execution is a long time coming, and it is difficult to sustain that level of emotional intensity through the appellate process. Research suggests that victims' families feel very ambivalent about the execution when it does finally arrive. The execution often does not bring the sense of peace or relief--the closure--that they seek or expect. Belva Kent, whose daughter was kidnapped and murdered by Ted Bundy in 1974, said the family expected to feel better after Bundy's electrocution in 1989:
"We waited all those years, and we thought once he was executed there would be some kind of end to it all. But (after the execution) we all just kind of looked at one another. The empty spot was still in our stomach. It wasn't at all how we thought we would feel. It didn't bring our loved one back. It does not heal you like you think it's going to."
Kent believes, more than two decades after her daughter's murder, "that you never heal from a crime like that."
Many victims' families, becoming locked in on the legal process and the series of set-back execution dates, seem stuck in a perverse existence: their satisfaction is tied to achieving the death of another person, which is not, when you think of it, a very happy way to live. Survivors who manage to avoid this state of mind, who retain their good memories of their loved one and get on with their own lives, often seem much healthier and more balanced, years after the crime, than the ones stuck in the past. "If I'm filled with hatred and revenge," one murder victim's grandmother said, "then (the murderer) won. He would have succeeded in totally ruining my life."
9. Preparations for the execution bring on a final review. Most crimes are strictly downhill after sentencing: the offender moves on into the correctional system and disappears, never to be heard from by the trial participants again.
The death penalty case is more like a long cross-country ski race--up and down hills, parts of the course where the racer disappears from public view, the falls, the wrong turns, the misadventures along the way, but always moving forward again, until the finish line comes in sight. Then there is that final dash to cross the line, the crowd cheering, waiting to see how he will finish.
The race is long enough to allow the defendant the opportunity to change. He is, for a start, 10 or 15 years older. He is far removed from the drugs and alcohol that were instrumental in his earlier life. He has had a lot of time to think. Even given the generally lower intelligence level of Death Row inmates (and not everyone on Death Row is retarded), he is probably better read, more reflective, and more articulate than when he arrived on the Row. He may well have turned to religion: you can do a lot of Bible study in ten years.
He may be, in short, a very different person. The attorneys and supporters of many Death Row inmates in the post-Gilmore era have made this very point, most often to state pardon boards with the power to commute death sentences to life: "This is not the same person sentenced to death years ago. He (or she) is changed." They've found God, they've found literature, they've found humanity--Karla Faye Tucker, Willie Otey, Antonio James. Don't kill this person for what they have become.
Wait a minute, the victims' families and legal officials protest in dismay. It doesn't matter what the murderers are now; what matters is what they were, and what they did to get here. The defendants should be thankful they had the extra time to accomplish these positive changes--changes they denied their victims by cutting their lives short in beginning their own "journey of change." One Texas inmate, executed in 1997, used his last words to thank the state for giving him the time to become a better human being on Death Row. The dead victims are forever frozen in time; their killers have moved forward into a new life.
10. Finally, there is the drama of the execution as an event. As war, taming the frontier, putting down rebellion, and other forms of state-sanctioned violence recede from memory, the execution remains as a demonstration of the ultimate power of the state.
With the number of executions increasing over time, to a 40-year high of 74 in 1997, executions may be in danger of becoming routinized, but individually they retain their elements of interest. The media report the condemned's last hours. Last-minute legal maneuvers are nerve-wracking. Will someone intervene to stop the process? What might go wrong?
As the pace of executions has accelerated, journalists have struggled with the problem of distinguishing one execution from all the others--yesterday's, last week's, next week's. More than one capital punishment observer has suggested that we have entered an era in which executions are so ordinary, especially in the states that do very many of them, like Texas, Virginia, and Florida, that the only ones to attract much attention are those where something goes wrong--someone's head shoots flames in Florida, or the Mexican government protests the execution of one of its citizens in Texas. Less distinctive executions are simply lost in the numbers.
Although we continue to focus on the act of execution (even to discussing televising executions live to enhance their deterrent effect), perhaps the time has come that we should change our concentration from the end to the beginning. An execution is, after all, merely a sanitized, methodical extermination; there ought not be anything really interesting about the process of using any instrumentation to kill a human being, even if it is legally sanctioned.
What we should look at is not the trial, or the appellate process, or how the criminal changes, or what the victim's family thinks, or how the execution was carried out: we should be looking much more at the stories of the lives of both offenders and victims. What were their lives like, and what brought them together in this incident that forever altered lives on both sides. In focusing on the legal process and the mechanics of execution, we often forget that the most important question to ask about a homicide is: "Why did this happen?" If we sought the answer to this question more seriously, we might begin to see that our persistent use of the death really creates more problems than it solves.
If we could answer the "why" of the crime, then perhaps we could better understand the "why" of our need to seek the ultimate penalty for the crime. Would we still do so? Justice Thurgood Marshall thought not. In his long Furman opinion, he wrote the following, which the Death Penalty Information Center continues to use as the slogan on its web site today:
... the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.
Justice Marshall goes on to say, later in the same opinion:
I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the bases of the material already considered that the death penalty is immoral, and therefore unconstitutional.
By the time of Payne v. Tennessee, in June 1991, Justice Marshall was very discouraged at the conservative turn of the Supreme Court. The Court, which at one time had seemed so close to abolishing capital punishment altogether, was moving back to an earlier, non-interventionist mode of thought. In this last death penalty dissent, Justice Marshall wrote:
Power, not reason, is the new currency of this Court's decision making.... In dispatching Booth and Gathers (cases establishing the principle that victim impact evidence was not to be presented in the penalty phase of a capital trial) to their graves, today's majority ominously suggests that an even more extensive upheaval of this Court's precedents may be in store.
Justice Marshall died less than two years later. His predictions, in regard to both the Court and the practice of capital punishment, have been borne out after his death. In their most significant decision of the 1997-98 term, the justices of the Supreme Court expressed impatience with the slow pace of executions, warning the federal courts not to delay executions for frivolous reasons.
The death penalty, as a peculiarly American legal practice, is now back to where it was forty years ago; if current trends continue, by early in the next century we will have moved all the way back to the 1930s. If Justice Marshall were fresh out of law school today, ready to start his legal career over again, he would feel right at home.