A Wild Justice

Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.

-- Francis Bacon

I talked about Susan Jacoby's discussion of revenge here and providing that title to a book on the death penalty is less debatable when it is particularly sympathetic to the abolitionist side. But, the story of the road from Justice Goldberg suggesting that the death penalty itself might be unconstitutional to Furman et. al. (opaque striking down of particular laws that many thought would be a permanent ban) to Gregg et. al. (death penalty per se constitutional, but "death is different" and it cannot be mandatory) is well-rounded, the other side provided as well.

As noted earlier, the book is well written and a brisk read (one chapter on the social science of deterrence/rationality is a bit dry at times) even though the main text is about four hundred and fifty pages.  A few times, certain things said were off (e.g., Powell opposing Roe v. Wade as strongly as he did Furman -- one of the sources, The Brethren, noted that he was fine with the result of Roe; if he means some of the reasoning, that should have been clarified). But, that happens, and underlines that things shouldn't be taken as gospel. Bart Ehrman would say the gospels shouldn't be taken as gospel, so to speak.  But, this only happens rarily.

You can listen to various oral arguments and even opinion announcements, including Justice Marshall's dissent from the bench in Gregg. One concern there was that retribution (which the first link suggests is not necessarily "revenge") justifies the death penalty.  Marshall doesn't deny some form of moral "retribution" is an illegitimate aspect of punishment. He just thinks that execution is an inappropriate form of it, either as excessive or for other reasons.

Justice Stewart in his separate Furman opinion (he later was a member of the "troika" who handled the Gregg opinions) noted:

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.

I too am not ready to say that retribution cannot be an aspect of punishment to meet constitutional requirements. I can understand that some might not want to grant this even for the sake of argument. But, Marshall is right -- is not even life imprisonment not enough to meet such demands?  For some prisoners, it is harder to handle, as we saw with a recent suicide.  Focus on what people "deserve" can at times deny the humanity of the prisoner, but there should be some middle ground.  Woodson v. NC,* a companion case, set it:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Justice Stevens noted at the time that he thought the "evolving standards of decency" did not yet require the abolition of the death penalty. Stevens, Blackmun and Powell eventually deemed that to be the case one way or the other (though they might have rested on due process grounds).  And, the justices (on both sides) judged things wrongly there in Furman -- society was not ready to do away with the death penalty and instead passed new laws to try to meet the procedural concerns of the deciding votes.  This is how constitutional law develops, properly so, and I think the rulings were good in a limited sense for setting some guidelines.  The machinery of death is not worse with them, is it?

This is not to say that some aspects might be worse. The point here is that requiring some safeguards and limits helped in various cases. It is of only limited value, yes, and I think the death penalty as applied and in general is unconstitutional. Still, note that even in Baze v. Rees, where Stevens announced this sentiment, he concurred.  At some point, you have to deal with the limits of the possible, which led many justices in the past to go along even if they rather not. The Brennan/Marshall stock dissent approach is defensible given what was at stake, but of questionable value.  Brennan knew the value of compromise.

The abolitionists as well as other parties in the book also had imperfect options and choices. The book covers this ground well.

---

* The opinion also accepts, now as a clear statement of the law, that "death is different," and warrants some degree of more special care.  This was a litigation strategy with some pushback -- wasn't the concern for arbitrary results etc. likely to call into question the whole justice system?

Now, the law clerk that helped Blackmun write his dissent stating he no longer would tinker with the machinery of death wrote a book saying "yes, it does," but this does not mean deprivation of life, liberty and property should be treated the same. It is not. It should not. There are levels of wrong, even as applied to specific cases. Realistically, there is only so much imperfect groups will do, the job of some to push them.