Powell's Uneasiness With the Death Penalty
I'm down to the short strokes on my paper, but I've just run across a very interesting anecdote about Justice Powell's uneasiness with the majority opinion in Gregg v. Georgia upholding the death penalty. This comes from the biography of Powell written by my law school's dean, John Jeffries:
The backlog on death row was large and growing. Roughly half of these sentences had been imposed under laws that would be upheld. When they were, the executions would begin in earnest. Powell feared a bloodbath and was looking for a way out.
This is hardly unusual. Several of the justices had very mixed feelings on the death penalty, switching their vote multiple times in that decade (Blackmun, White, Stewart). But Powell's proposed solution seems astounding:
His plan was that the decisions upholding capital punishment should be prospective only--that is, the laws would be found constitutional only for future death sentences. Those already on death row would have to be resentenced, even if they had properly been condemned under valid laws.
His justification was that:
"[S]ome of the sentences were imposed by juries, and even by courts, with a rather strong belief that capital punishment would be totally outlawed by this Court.... In view of this ambiguity, I hesitate to say that every sentence of death in these states woudl have been imposed had the law been settled rather than quite unsettled."
Unsurprisingly, Powell could find no support for the idea that the upholding of a law could be limited to prospective application:
Nor was it logical to say so. A death sentence could be upheld on appeal only if it was valid when imposed. If the sentence was valid, it could be carried out. It seemed preposterious to say that a sentence was valid when imposed but that it could not be carried out despite a decision in its favor. What did it mean to uphold a law as constitutional if it could not be enforced?
So Powell abandoned the plan and it was relegated to the dustbin of his internal papers. As Jeffries goes on to point out, the fact that Powell even considered such a plan "showed his uneasiness about personal responsibility for renewed executions." His opinions in the death penalty cases would go on to haunt him and leave him with much regret.
I've come to believe that the history of death penalty cases from the late 1960s through the 1970s is among the Supreme Court's most fascinating periods. It is filled with very personal anecdotes about the justices' individual struggles, the fascinating internal dynamics of the Court, as well as a treasure trove of opinions demonstrating the best and worst of the different jurisprudential philosophies. If you've never looked into it before, I recommend it. And there are worse places to start than the chapter on "Crime and Death" in Jeffries' biography of Powell.
