Personally, I am in the latter camp. I believe in capital punishment. I believe in carrying out justice for those who commit unspeakable crimes, retribution for those who have been horribly victimized, and strong deterrence for the community to prevent the horrific crime from happening again. But under our constitutional system, you need not agree with me. You are free to arrive at a different judgment that suits your own preferences and your own set of morals.
Indeed, when I was a law clerk for Chief Justice William Rehnquist, both of my co-clerks were vocally opposed to the death penalty: one, a Democrat who leaned center-left on most policy issues, and the other, a Catholic conservative who is now a professor at Notre Dame Law School and opposed the taking of any human life. The Chief and I both disagreed and believed that capital punishment is just—and, furthermore, that the Constitution unequivocally permits it.
Indeed, during the course of my clerkship I recall instances when each of my co-clerks fervently made the case to the Chief for why he should intervene and stop the execution of a particular murderer. Each time, the Chief would patiently listen, and then with a quizzical look reply, “Why would I want to do that?”
If you oppose capital punishment, there is a constitutional avenue for you to promote your views. Make the case to your fellow citizens, to elected legislatures, and convince them; move the hearts and minds needed to democratically change the law. And, following that path, twenty-two states, in addition to Puerto Rico and the District of Columbia, have now outlawed the death penalty. So in those states, capital punishment is no longer allowed. Other states, including my home state of Texas, have instead taken the view that capital punishment saves the lives of the innocent by punishing the very worst offenders and deterring future crimes. Such is the beauty of our Constitution’s federalist structure of dual spheres of sovereignty, in which the several states can each adopt the policies their citizens prefer.
For four years, however, the Supreme Court shut it all down. In 1972, in Furman v. Georgia, the Court struck down all death penalty laws across the United States as inconsistent with the Eighth Amendment’s prohibition on “cruel and unusual punishments.” This was notwithstanding the fact that the plain text of both the Fifth and Fourteenth Amendments indisputably recognizes the authority of the government to “deprive” a citizen “of life” so long as “due process of law” is afforded. That should be no surprise, given that, at the time the Bill of Rights was drafted and adopted and at the time the Fourteenth Amendment was drafted and adopted, capital punishment was widespread for the very worst crimes. Nonetheless, despite the fact that the Constitution itself refers to capital punishment explicitly and repeatedly, in Furman, five activist justices declared that capital punishment was unconstitutional.
In Furman v. Georgia, four justices dissented, including my future boss, William Rehnquist. He had just arrived on the Court, and he strongly disagreed with the activist judges’ conclusion that it was not the text of the Constitution that governed, nor the two centuries of legal practice in the United States, but rather what they declared to be their own “evolving standard of decency.”
To be sure, the Eighth Amendment does prohibit “cruel and unusual punishments.” So if Congress or a state legislature were, for example, to enact a law providing for the public flogging and then drawing and quartering of jaywalkers, any court in the country would rightly strike that down as both “cruel” and “unusual.” But as we have already seen, the Fifth Amendment, adopted at the very same moment the Eighth Amendment was adopted, explicitly recognizes capital punishment as within the proper authority of government. So whatever one might argue the Eighth Amendment prohibits, it cannot reasonably be construed to prohibit what the Constitution explicitly allows.
Furman v. Georgia remained Supreme Court law for four years, from 1972–1976. And in those years, thirty-seven states enacted new death penalty laws in an effort to comply with the new standard set out by the Court. Then, in 1976, in Gregg v. Georgia, the Court reversed course and once again deemed capital punishment to be constitutionally permissible. In the intervening four years, countless murderers had had their sentences reduced from death to lesser sentences because of the Court’s reckless judicial activism in Furman.
When it comes to the death penalty, Furman v. Georgia began a five-decade journey into gamesmanship by liberal judicial activists. Many of the games that are played occur just below public view. Every time across this country that a criminal defendant is to be put to death, the Supreme Court justices stand prepared for the nearly inevitable torrent of last-minute appeals. In many states, executions are carried out at 12:01 a.m., so that, if there is a judicial intervention, there are a full twenty-four hours in that day before the execution warrant expires.
As a result, when I was clerking at the Supreme Court, whenever an execution was scheduled, a law clerk from each of the nine justices’ chambers would remain at the Court until the execution was carried out. For executions scheduled in states on the West Coast, that typically meant remaining at the Supreme Court until 3:00 a.m. local time. Then, typically at 10:00 p.m., or 11:00 p.m., or midnight, or 1:00 a.m., a last-minute appeal would be sent over—often, in those days, on the fax machine. The appeal would be distributed to each of the nine Justices’ chambers and, if you were the clerk for the justice who had responsibility for
