A Wild Justice: The Death and Resurrection of Capital Punishment in America

by Evan J. Mandery

New York Times Book Review Editor's Choice

Drawing on never-before-published original source detail, the epic story of two of the most consequential, and largely forgotten, moments in Supreme Court history.

For two hundred years, the constitutionality of capital punishment had been axiomatic. But in 1962, Justice Arthur Goldberg and his clerk Alan Dershowitz dared to suggest otherwise, launching an underfunded band of civil rights attorneys on a quixotic crusade. In 1972, in a most unlikely victory, the Supreme Court struck down Georgia’s death penalty law in Furman v. Georgia. Though the decision had sharply divided the justices, nearly everyone, including the justices themselves, believed Furman would mean the end of executions in America.

Instead, states responded with a swift and decisive showing of support for capital punishment. As anxiety about crime rose and public approval of the Supreme Court declined, the stage was set in 1976 for Gregg v. Georgia, in which the Court dramatically reversed direction.

A Wild Justice is an extraordinary behind-the-scenes look at the Court, the justices, and the political complexities of one of the most racially charged and morally vexing issues of our time.

Genres: History, Nonfiction, Law, Politics, Crime, Legal, Death

545 pages, Kindle Edition

First published August 19, 2013

About the author

Evan J. Mandery is a professor at John Jay College of Criminal Justice in New York City. A former capital defense attorney, he is the author of five previous books. He lives in Manhasset, New York.

Reviews

[Matt · Rating 4 out of 5]

My first job out of law school was as a clerk for a state court of general jurisdiction. In the legal world, a law clerk is usually a younger attorney, fresh out of law school, who – for some inverted reason – gives advice and counsel to a judge with far greater experience. In that role, I got to participate in that rarest of legal proceedings: a capital murder case. From various vantage points (in open court, in the judge’s chambers, listening to the sidebars, eventually in my dreams), I was there for the whole arduous process, from the first pretrial motions to the final order sentencing the defendant to death. It was, to put it mildly, an experience.

Thus, I read Evan Mandery’s A Wild Justice with quite a bit of professional interest. (It should be noted that by “professional,” I mean “functionally alcoholic”).

A Wild Justice covers the period in American history when capital punishment itself seemed to die, slain by zealous attorneys and an acquiescent Supreme Court, only to be reborn within a matter of years, risen from the dead like an archaic jurisprudential zombie.

It is not, to be clear, a simple story.

A Wild Justice is not written for specialists. It is not even written for average attorneys with an over-fondness for Yellow Tail wine. It is written for lay people, complete with asterisks next to legal terms of art, which are defined at the bottom of the page. Still, legal opinions are often tricky at best. United States Supreme Court opinions are the trickiest of legal opinions. And the Supreme Court’s handling of the death penalty cases from 1972-1976 present one of the most complex, mystifying runs in Court history. (Generally, great weight is given to precedential authority, a dictum known as stare decisis. During this period, the Court overrode itself twice in a matter of four years).

Mandery begins his story in 1962, when Supreme Court Justice Arthur Goldberg and his clerk Allan Dershowitz, came to the conclusion that the death penalty violated the 8th Amendment’s prohibition against “cruel and unusual” punishment. Dershowitz helped Goldberg pen an internal memorandum for the Court’s consumption. Later, he published a dissent from the Court’s denial of certiorari in Rudolph v. Alabama (the denial from cert meant that the Supreme Court wouldn’t hear the case) arguing that the Court should take up the matter of capital punishment’s constitutionality. Goldberg specifically challenged the imposition of the death penalty for rape cases; however, his framing of the questions essentially provided a blueprint for enterprising civil rights attorneys to follow in attempting to strike the death penalty completely.

A small band of lawyers, led by Anthony Amsterdam of the Legal Defense Fund (LDF) took Goldberg up on his offer. The LDF, which had been called “the most important law firm in America,” rose to prominence in the capital punishment field because the ACLU refused to view the matter as a civil rights issue. The LDF had won several monumental legal victories, including the most famous Supreme Court of all – Brown v. The Board of Education. The LDF’s interest in capital punishment came from the disproportionate way in which it was applied. In other words, it fell heavily on the poor and minorities; and fell especially hard if the poor or minority person had perpetrated against a white person.

The attorney handling capital punishment for LDF was Tony Amsterdam. Though Manderly politely refrains from taking a legal/policy position on capital punishment (more on that in a moment), Amsterdam is clearly the hero of this story. The sling-wielding David against the Goliath of entrenched legal/historical reality of the death penalty.

If LDF was the most important law firm in the United States, Tony Amsterdam was surely the most important individual lawyer. No other attorney in American history has had such a profound influence on civil rights issues. In addition to playing a role in every major Supreme Court death penalty case argued since 1965, Amsterdam won important victories limiting the ability of police officers to stop and frisk suspects, protecting free speech, and in defense of the civil rights of the Black Panther Bobby Seale. He argued dozens of cases before the Supreme Court, once three in a single week.

Amsterdam and LDF broke through, briefly, with a case called Furman v. Georgia, involving the murder of a man during a home-invasion robbery. (There were two other companion cases – plus a third that went moot – but I’ll ignore them in order to avoid further muddying the waters of this legal Mississippi). In Furman, a sharply divided Supreme Court held the death penalty unconstitutional in the cases before it.

The Furman case is an absolute mess to read. I know because I read it.

The crux of the decision is a brief, 5-4 per curiam opinion (meaning that no one Justice takes authorial credit) finding the death penalty in the Furman trilogy unconstitutional. Then there are nine (9!) separate opinions each explaining what the individual Justice believed the state of the law to be. None of the majority justices agreed with each other as to why the death penalty was unconstitutional. The result was a 66,000 word monstrosity with no controlling holding. (I still remember the baleful glare of the librarian when I printed off Furman in the law library. That printer printed for what felt like an hour).

The upshot of Furman was a four-year moratorium on the death penalty while State legislatures tried to figure out what the opinion meant while crafting new capital punishment statutes. Those new laws were tested in Gregg v. Georgia (along with four companion cases), in which the Supreme Court, in a slightly less byzantine manner, reaffirmed the ultimate constitutionality of the death penalty, while providing more “meaningful” guidelines for its imposition.

In the short run, the moratorium hurt as much as it helped. Unlike Prohibition and the Volstead Act, which failed as a law but ultimately reduced the consumption of alcohol, the brief death penalty restriction unleashed a wave of executions and a surge in its popularity. On the bright side – thinking as a human being, not just a lawyer – important guidelines and protections were put in place. Eventually, the Supreme Court outlawed capital punishment for rape (Coker v. Georgia), for the legally insane (Ford v. Wainwright), for the mentally retarded (Atkins v. Virginia, for minors (Roper v. Simmons), and eventually for any crime short of murder (Kennedy v. Louisiana; though crimes against the State, i.e. espionage, are excepted).

Manderly guides you through this tortured legal history using a hybrid narrative-analysis approach. He sets up certain scenes, and tells certain arcs, as though it were a Grisham novel. At other points, however, he stops for legal-historical analysis. This can sometimes be confusing, as it requires Manderly to jump forward and backward in time. At certain points, he’ll name drop a case before explaining its relevance. To this end, a short summary of pertinent cases is helpfully included in the back of the book (along with some very interesting endnotes that are also worth a look for the way they continue certain discussions not contained in the text).

For me, A Wild Justice started rather slow. Despite being the torch-bearer of the movement, Manderly’s characterization of Tony Amsterdam is too flattering and one-dimensional (and a bit worshipful).

The book hits its stride when it comes to the actual deliberations and inner workings of the Supreme Court. I don’t want to oversell this book, but the Court-centric chapters are the best accounts of the Court I’ve read since The Brethren shed light on the Burger Court. A glance at the acknowledgements shows why: Manderly has gotten incredible access to those surviving players (mostly law clerks) who were there. (Indeed, it seems only Warren Burger’s clerks refused to talk, due to some odd oath they took to one of the Court’s more duplicitous and intellectually lacking members). I would go so far as to say that the chapter on Byron “Whizzer” White was almost worth cover price. (That’s an obvious exaggeration. Nothing in any book is ever worth today’s inflated cover price).

The beginning of understanding Byron White thus is to understand that he didn't want to be understood. David Frederick, a former White clerk said, “Being non-ideological and non-doctrinaire was clearly very important to White, just as was being his own person and not worrying about his place in history.” Another clerk said White’s judicial philosophy is best found in “the elusive originality embedded in the particular.” White took realism’s skepticism regarding classification to a different level. His attempt to defy all labels, schools, and intellectual boxes was a conscious effort to remain unpredictable.

Mandery is a law professor who formerly worked as a capital defense attorney. Accordingly, one might pick this up thinking it’s a polemic. That’s just the case. This is a generally unbiased book (save for his view of Tony Amsterdam) that isn’t really trying to make an argument for or against capital punishment.

So, because I can, I’ll go ahead an make the argument that Mandery neglects.

Is the death penalty unconstitutional under the 8th Amendment? No, it’s pretty clearly not. I’m not a “strict constructionist” by any means, since I lack Scalia’s miraculous ability to divine the intent of dozens of different Constitutional framers. Yet it is quite obvious that capital punishment existed at the time the Constitution was written, ergo, the it’s equally as plain that the 8th Amendment didn't exist to strike those punishments down.*

*However, I think there is an argument (which the Supreme Court has disagreed with) that capital punishment is unconstitutional under the 14th Amendment’s equal protection clause, on an as-applied basis, as the death penalty is grossly arbitrary in its application. Especially with regards to race.

Do I think the death penalty is wrong, constitutionality aside? Yes – resoundingly.

Deterrence: There has never been a study showing that the death penalty acts as a deterrent. This has been shown empirically, though numbers can’t show why. Intuitively, though, this lack of a deterrent effect makes sense. I’ve been around a lot of criminal defendants, and foresight and planning are not among their strong suits. Very few people commit crimes thinking about the consequences.

Recidivism: But the death penalty keeps dangerous people off the street! Please. There are a shocking 10,000 people in the United States (the largest prison in the world) serving sentences of life without parole for nonviolent offenses. Prisoners convicted of capital crimes can just as easily be kept off the streets with LWOP sentences. In most states, even a conviction for second degree murder (coupled with a use charge) means you’re leaving prison on a gurney, with a sheet over your head.

Economics: Often in the death penalty debate, you hear the “I don’t want to pay for these guys” argument. Meaning, of course, that it’s cheaper to kill ‘em than house ‘em. Not so. It costs less to house a person in the general population than it does on death row.

Respect for the State: Killing a person is a homicide. When the State does it under the law, it is justified, it is sanctioned, but it is still a homicide. For the government of the people, by the people, for the people to be killing its citizens promotes disrespect for the State. The State knows this, which is why executions are clothed in secrecy, carried out in private, and why State legislatures are passing obnoxious secrecy laws about the mechanisms of death. If you want to execute, do it in the open, where we all can see. Afterwards, we all can vote.

Dehumanization: The death penalty is a dehumanizing process for everyone involved. I know this from personal experience, from watching it close up. Deciding who lives and who dies involves terrible comparisons that require judges and juries to weigh one crime against another, one victim against another. In this calculus, child victims trump adults; female victims trump male victims; you get to the point where you’re trying to decide whether a murder is especially “heinous or cruel” when murder, by its very nature, is always heinous or cruel. And then there’s the people who have to carry it out. There’s a reason executioners used to hide their faces. It’s not because they’re proud of what they do.

Prison is not a joke: I don’t know why people think prison is “getting off easy.” Prison sucks. I’ve been inside them. But you don’t have to visit (or get convicted of a felony!) to see this. Just watch Lockup Raw on MSNBC. It’s how I spend many Saturdays. Gary Gilmore, the first man executed after the post-Gregg moratorium ended, wanted to die. He wanted to die quite badly. Because he hated prison! The lights are always on. It’s loud. You have no privacy. The food is terrible. You are always being counted. You can’t go anywhere without constant restriction. The whole universe of pleasures – from a walk in the mountains to a day by the lake to a hamburger on a grill to a beer on your patio to heterosexual sex – are gone forever, the memories of things you’ll never see again in this life. That is one hell of a punishment, if you ask me.

Victim-shifting: Finally, the death penalty changes the focus of these crimes. One thing I noticed in this book is that the crimes are barely described. This probably wasn’t intentional, but its emblematic of this truth: capital punishment keeps killers in the news, in our consciousness, while we forget the people they killed. We recall the names of Furman and Gregg, but we don’t think at all about who they slaughtered. By the time we get around to killing these cons, they’re older and different men. When the State puts them to death, they’re suddenly the victims, the ones remembered, and that’s not the way it should be.

Killing, unfortunately, is firmly within human nature. It is part of mankind’s limitless abilities. That ability can – as in war – be legally justified. I do not believe, however, that the question begins and ends with our ability to kill, or with our ability to justify the act. It extends to the question of choosing who deserves their continued and existence, and who does not.

Back when I was working on that capital case, I also happened to be reading Orwell and abusing NyQuill. One night, I had a profoundly vivid dream. A talking pig, dressed in a suit, approached me in the Courthouse and said: "It is very arrogant of you to think you know what you think you know."

That talking pig was right.

The wisdom to decide who lives and dies, I’m quite sure, eludes every person on this earth.

[David · Rating 5 out of 5]

When I was in law school, I read in passing that the Supreme Court struck down the death penalty in the mid 1970's, but then reintroduced it just a few years later. I recall thinking, "Something must have happened." I didn't investigate further at the time, and yet the question always stayed with me. What exactly happened in those few years that's now generally forgotten to history? Evan Mandery's book answered that question and then some.

It turns out A LOT happened in those years. The twists and turns that led to the Supreme Court first striking down capital punishment only to resurrect it a few years later was indeed "wild." And the human beings that actually tried and decided these cases -- the justices, lawyers, and law clerks -- take center stage in this book.

Mandery is a really good writer. This book was a page-turner in the mold of a John Grisham novel. Mandery takes what can be a dry topic -- Supreme Court jurisprudence -- and turns it completely alive. He was also able to get folks to spill the beans and thereby capture the behind-the-scenes details of secret conversations between the justices and law clerks. This book was a remarkably fast read.

That being said, I had one beef with this book and it was a big one. In the middle of the book, Mandery details a crucial compromise worked out between Justice Stewart and Justice White. It was a secret deal that ultimately led to the Supreme Court decision's to overturned Georgia's death penalty statute. Unlike with other behind the scenes conversations, this time Mandery admits that the conversation was totally "lost to history." Neither justice "ever repeated what was said" about their deal. Both have since passed on.

Nevertheless, Mandery then spends an entire chapter describing in elaborate detail exactly what the two justices said to each other! For instance, Mandery tells us that, "White told Stewart that he objected to the death penalty because states used it too infrequently to achieve any legitimate social goal." Really? How would he know what "White told Stewart"? Wasn't it was "lost to history"? There are no sources cited in the end notes to this portion of Mandery's book. I can only imagine that this was purely speculative fiction on Mandery's part.

Otherwise, I thought this book was a tour de force. While I can't imagine anyone picking up this book who doesn't otherwise have an interest in either capital punishment or the U.S. legal system in general, for those of us who do, this was a fantastic read.

[Tim · Rating 5 out of 5]

Phenomenal book on the Supreme Court, which brings the personal relationships to light. I did not know whether to feel inspired as it showed how human the Justices were, or depressed, as they used legal arguments to justify their personal decisions. The more I read about the Supreme Court, the more the decisions they make seem influenced by some may more factors than we outsiders can imagine.
Great book for politicos, Mandrey makes the drama work well through out. His coverage of the characters is fascinating, and deep.

[Danielle · Rating 4 out of 5]

A dense read that delved into the histories and experiences that shaped the key stakeholders (justices, litigators, researchers) in coming to their positions on capital punishment. A fascinating look into how law comes closely into play with social, political, sociological, racial, and emotional issues- hardly the black and white, but rather a multidimensional field of lobbying and strategy.

[Rachel S. · Rating 5 out of 5]

A truly impactful narrative of the litigation leading up to Furman, the decision itself, and the conditions of the years between that and Gregg. Remarkably readable.

[Mikaela · Rating 5 out of 5]

This is a fascinating, well-written account of the most pivotal years in Supreme Court death penalty jurisprudence. Mandery reveals the significant stakes of the questions under review, which stretch far beyond the narrow policy issue of whether capital punishment is "good or bad." To say that the book is thoroughly researched is a tremendous understatement. Mandery has a wealth of primary sources and deploys them expertly. He conveys relevant intellectual heritages as well as anecdotes/information about the Justices' and lawyers' personal lives, which illuminates the judicial proceedings. This book will be highly relevant for my academic research, but I'm glad to have read it for any number of other reasons as well.

Minor criticisms: 1) Norton needs better copy editing. I noticed enough typos for it to become distracting. 2) There are so many names and cases that in such a long, in-depth book it's sometimes difficult to keep track of who's who and what's what. (The index of cases at the back is helpful, but not detailed enough.) 3) I guess the book is designed for a general audience, but I think footnotes would be really helpful. The references in the back correspond to page numbers, but usually only direct quotes appear there.

Highly recommended.

[Reader · Rating 5 out of 5]

An exceptionally interesting and well-researched read.

Prior to reading the book, I had my own reservations about the death penalty- applying death as a punishment to murdered doesn’t seem to serve any purpose except for retribution. This idea was refined through the book- Discrimination, the lack of a deterrence effect, and the possibility of life imprisonment without parole were all reasons against the death penalty.

This books brings to life fantastic lawyers and supreme arguments- to where my opinion on the death penalty wavered. If the public’s support for the death penalty is overwhelming, where is the legislative drive or the democratic basis for striking down the death penalty?

Some murderers are spared; others are not. This application of mercy- seemingly arbitrary and random- is discussed thoroughly. Indeed, mercy should be seen as a feature, not a bug of the justice system. It would be morally repugnant to suggest otherwise- such as mandatory imposition of death penalties that will curtail mercy, and by extension, arbitrariness.

The imposition of standards is another important legal theme- Can you possibly impose standards, a list of mitigating or aggravating evidence, to examine if a man is deserving of death? If a man who killed a police officer is mandated to die, does that not reduce the mercifulness and discretion that was inherently built into the system? What about a sweeping guideline for “gruesome murders”? How is this standard useful given that different juries would have different ideas about “gruesomeness”?

I would highly recommend this book for a discussion about these ideas and an exploration into individual justices’ thinking processes.

[Kenneth Barber · Rating 5 out of 5]

This book follows the issue of the death penalty in the Supreme Court. The book begins with the memorandum written by Arthur Goldberg in 1963. Goldberg was on the Court at the time and was against the death penalty. He wanted the Court to rule on the death penalty. The book then describes the decision in the Furman case in 1972 that struck down the death penalty. The Court ruled that the penalty was administered in an arbitrary manner. However, the didn’t rule on the discriminatory application of the death penalty. The author utilizes not only the written opinions of the justices, but notes from conferences of the justices and from the clerks.
The book simultaneously follows the actions of the LDF which took up the issue to abolish the death penalty. The reader learns the main characters and their strategies to abolish the death penalty.
This book is a detailed but very readable history of the death penalty history.

[Jerusalem Demsas · Rating 4 out of 5]

long but worth it. humanizing.

[Bap · Rating 5 out of 5]

This is a riveting story of a few short years when the Supreme Court came close to declaring the death penalty unconstitutional but the decision by a sharply divided court in Fuhrman that held that the Georgia statute rendered verdicts of death to be wanton and freakish and thus arbitrary did not last very long. The issuance of this decision in 1972 may be seen as the last gasp of the liberal minded court which was transformed both by conservative appointments by Nixon and the backlash that Nixon personified. The Decision prompted states to pass new death penalty statutes which in 1976 were generally upheld. Gary Gilmore was the first too be executed. 1300 others followed.

The book deals with the Justices and their clerks as they struggled with what path to take and the advocates. From Alan Dershowitz to the cadre of abolitionists lead by the brilliant Tony Amsterdam to the proponents including Robert Bork. It is also fascinating to consider what would have happened if Goldberg had not been persuaded to step down by LBJ to become the UN ambassador or if his replacement Abe Fortas had not resigned in disgrace. The death penalty may have been dealt a blow sooner and with a more definitive decision that could have stood longer as solid precedent. And if justices Powell, Blackmun, and Stevens had converted to an anti death penalty stance early on rather than late in their tenures, history would have been different . Blackmun would come around to write; "from this day forward, I no longer will tinker with the machinery of death. ...I feel morally and intellectually obligated to concede that the death penalty has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent deficiencies."

This book reads like a Grishom novel and gives you an appreciation of how some of the very best lawyers of the time battled to shape the law of Capitol punishment.

Having been lead counsel in a death penalty habeas corpus case that went all the way to the Supreme Court, I thought I was fairly well versed but I learned so much from this book.

[Geillis Shadow · Rating 2 out of 5]

I only recommend this book to people who are very interested in the death penalty because the author nearly goes into every historical detail about it, especially when it comes to the background of the two cases being discussed.

[Nicki · Rating 2 out of 5]

I am really interested in this topic and I heard the author on the radio. He had some provocative points, so I picked up the book. While the author knows his stuff, I got bored. The first few pages seemed quite promising. But after a while there were too many names, too many cases. Mandery summarizes a case in two or three sentences, but knowing a lot more than his summary is important to understanding the arguments. The author flips back and forth between cases, lawyers, and justices so frequently that it is dizzy-ing. I think one needs a deep foundational understanding to read this book and I mean deep--I am a law school graduate. The author is a law professor and aside from an occasional footnote, he seems to think that law students and seasoned attorneys are his audience. There is not much of a policy debate or a discussion of the experiences of the actual criminals and victims of these crimes to balance the law and provide some perspective outside of the courtroom and judges' chambers. After 100 pages, the book felt like a chore. After skimming the remainder of the book and seeing much of the same, I put it down for good.

[Qwalyne · Rating 4 out of 5]

I thoroughly found this book fascinating, but I was interested in death penalty law before I started this book. I especially found fascinating the interactions between the justices and their law clerks. As a law clerk myself, I found that many of their concerns mirror my own. Even though I don't work on any cases as weighty as the ones discussed in this book. This book loses a star because, like many nonfiction books, it contains too many irrelevant minutiae and redundancies.

[Julie · Rating 4 out of 5]

Meticulously researched, well written and reads as compellingly as fiction. Although the outcome is known, I couldn't help but hope for a different ending. (My only issue with this book was the lack of fine-tune editing. It seems that with advanced technology, there should be fewer typos in books.)

[Pam Wilkins · Rating 5 out of 5]

I very much enjoyed this book. I'm quite familiar with the case--I teach in this area--but I still learned a great deal about the internal dynamics at the court, etc. Justice Stewart wasn't really primarily concerned with arbitrariness, for example? Nice, informed read. Must've been supreme interesting to research and write.

[Brian Crime · Rating 5 out of 5]

It was detailed. I enjoyed the framework built around the fight to preserve our right as a nation to murder select inmates. Abolition is long overdue.

[Al Menaster · Rating 5 out of 5]

Fabulous book. Mandery interviewed many clerks and had access to lots of internal memos and notes from the Justices, and he tells the story of the death penalty in the US; struck down then revived.

[Sydney · Rating 4 out of 5]

I'm embarrassed by how much I didn't know about the death penalty before reading this book.

[Colleen · Rating 4 out of 5]

I thought this book was fascinating, as long as you are interested in the subject.

[Katy · Rating 4 out of 5]

Informative and well written. Raises disturbing questions about the American legal system

[Angel Mason]

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