‘Let the Lord Sort Them'
An excerpt from Maurice Chammah's new death penalty book
I wonder about my friend Maurice Chammah. If I describe him as mild, do not mistake his gentle mien and calm visage as weakness. By his own free choice, he has chosen a vocation where he stares injustice in the face, writes down what he sees, and shows it to us. I could not bear the life Maurice has taken on for himself that he has turned of late into a book called “Let the Lord Sort Them: The Rise and Fall of the Death Penalty.” Maurice, a mensch if there ever was one and perhaps aware of my preference for good news, has graciously offered this excerpt for The Experiment, for which we offer gratitude for this brief period of good news in a long, awful story.
by Maurice Chammah
On a Thursday morning in June 1972, hundreds of death row prisoners across the country laughed and whooped and rattled their cell doors. They had spent months and even years waiting for the day they’d be led to an electric chair or gas chamber or firing squad or noose, but now the shocking news was making its way down the runs: The Supreme Court had ruled that every death penalty law in the country was unconstitutional; all of their death sentences had been thrown out. In Florida, a prisoner wrapped a guard in a bear hug. In Tennessee, one placed his hands on his hips and scowled as a news photographer snapped his picture next to the electric chair, as though he had conquered this dusty pile of wood and leather.
In Texas, a wave of applause rang through the Ellis Unit in Huntsville, and when Elmer Branch received the evening issue of the Houston Chronicle, he stretched his arms out of his cell to show it to his neighbors. The next morning, Branch himself would be above the fold in newspapers across the country, pictured sitting on his neatly made prison cot and gazing through the cell bars. Many of the papers noted his crime: the rape of an elderly white woman. “If I ever get out, I’ll try to find a job,” Branch, who was black, told a reporter. “I would go somewhere where I could make something of myself.”
The Supreme Court’s decision in Furman v. Georgia—which had been joined by Branch’s own case, Branch v. Texas—appeared to represent the end of the death penalty in the United States. It was the culmination of a long decline. Since the 1800s, a number of states had been removing capital punishment from their laws or limiting it to rare crimes. In 1959, there had been 124 murders in Harris County, Texas, which encompassed Houston, but only three people sentenced to death, and a candidate for district attorney there openly questioned capital punishment. By 1963, the year a Texan became president, polls showed less than half the country favored the practice, and Lyndon Johnson appointed an attorney general who openly opposed it. The news of American military atrocities in Vietnam—along with the discovery of German death camps a generation before—gave new power to the argument that governments should be restrained in their authority over life and death. Many European countries were abandoning executions as well.
Amid this broad cultural and political shift, there were people nudging history along. In Manhattan, lawyers with the Legal Defense Fund of the National Association for the Advancement of Colored People spent the 1960s mounting an assault on capital punishment, believing the institution to be deeply linked to the history of racial injustice. Their leader in this effort was Anthony Amsterdam. A tall and lanky law professor, his eyes sunken but demanding, Amsterdam was famous for working twenty-hour days and appearing to survive on thin cigars, coffee, and diet soda. He was the kind of lawyer who could dictate a brief from memory over the phone and argue in court without notes. In one oft-repeated story, he cited an obscure old case by volume and page number. The judge looked it up and couldn’t find it on the page, and Amsterdam brazenly suggested the judge’s copy of the volume must be bound incorrectly; he turned out to be right.
In 1963, Amsterdam and the LDF received a signal that they were uniquely prepared to interpret. In response to an appeal from an Alabama prisoner, three Supreme Court justices signed a brief statement saying the Court should decide whether it violated the Constitution to execute someone for the crime of rape. The justices rejected the vast majority of appeals without writing publicly, so this statement was a quiet bombshell. It implied that if the LDF lawyers challenged the death penalty in the courts, they might succeed.
After the opinion came out, the LDF sent law students across the South to gather data about capital punishment, while Amsterdam himself wrote up “Last Aid Kits,” collections of legal briefs that any lawyer could file to stop an execution. These briefs rarely changed the ultimate outcome of a case, but that wasn’t the only goal: The other, perhaps principal, goal was to gum up the legal system. The strategy worked. In part because of their efforts, executions slowed to a halt in 1967. “For each year the United States went without executions,” one of Amsterdam’s colleagues recalled, “the more hollow would ring claims that the American people could not do without them.” At the end of the decade, the Supreme Court reinforced the trend by giving the LDF a series of victories: In one decision, the justices struck down a federal law that allowed the death penalty for kidnapping, and in another they declared that citizens who had “conscientious scruples” about the punishment should be allowed to sit on juries, even if this gave defense lawyers an edge.
Amsterdam and the LDF knew their successes might not last. In 1968, Richard Nixon took the White House after declaring, “Time is running out for the merchants of crime and corruption in American society,” and when the chief justice of the Supreme Court retired, Nixon nominated Warren Burger, a judge known for siding with law enforcement. In 1971, Burger’s court ruled against a death row prisoner in California who had argued that his jury had been given no clear legal guidance on how to decide his fate. “This is an oblique attack on capital punishment,” Burger fumed to his colleagues. It seemed the Court was done with limiting the death penalty.
So it was all the more surprising when, a few months later, the justices agreed to hear arguments on whether the death penalty as a whole was “cruel and unusual.” The move was driven not by those who opposed the death penalty but by those who, like Burger, thought it was perfectly constitutional and wanted to say so, once and for all. Still, they had given Amsterdam and his colleagues a once-in-a-generation opportunity to persuade the Court to do the opposite—to end the death penalty for good.
The justices accepted the appeals of three death row prisoners, which would be argued all together under the banner of the lead case, Furman v. Georgia. William Henry Furman had been convicted of murdering William Joseph Micke, Jr., a twenty-nine-year-old father of five. The bullet had gone through a closed plywood door before hitting Micke; Furman claimed to have tripped over a wire, which had caused his gun to go off. He seemed to have little in common with the era’s scariest figures, men with epithets instead of names: the Zodiac Killer, the Boston Strangler.
As he stood before the justices at oral argument, Amsterdam made sweeping arguments about his fellow Americans: Although many might say they believed in the death penalty, he said, in practice they almost never handed it out. If the government started executing “any reasonable proportions” of the people who qualified for the punishment, Americans would be sickened, and it violated the Constitution to execute the random handful who were unlucky enough to wind up in the electric chair.
Even worse, Amsterdam added, that handful wasn’t entirely random: The few who were executed were “disproportionately the pariahs, the poor and racial minorities.” Amsterdam had the rhetorical skill to pull listeners through a dense argument before slamming on the brakes. “The figures are perfectly plain,” he said. “Georgia executes black people.” Another lawyer, who argued on behalf of Elmer Branch, the Texas prisoner facing the death penalty for rape, offered proof: A black man convicted of rape in Texas had an 88 percent chance of being sentenced to death, versus 22 percent for other races.
In June, the Court ruled in favor of the prisoners, freeing Furman and Branch and hundreds of other men from their death sentences. Although Branch himself was all smiles when he heard the news, thinking he might now be released, others on Texas death row were apprehensive and even gloomy, realizing they would all likely spend the rest of their lives in prison. Many would have preferred death to such a fate.
Right before the men on Florida’s death row learned about Furman v. Georgia, they had gathered in a gym to watch the movie Dirty Harry. It was an ironic choice. In the 1971 film, a steely-eyed Clint Eastwood struggles to catch a serial killer. He is stymied at every turn, not just by the killer himself, but by his own superiors in the police department, who care—too much, the film suggests—about all the rights guaranteed to criminals by the courts. (At one point, the villain is freed from jail because Harry seized evidence without a warrant.) After the movie ended, the prisoners received word of the Furman decision and celebrated, but outside the prison, the public responded just as Dirty Harry himself might have, with righteous indignation.
Maurice Chammah is a journalist and staff writer for The Marshall Project. His reporting on the criminal justice system has been published by The New Yorker, The New York Times, The Atlantic, Esquire, and Mother Jones. He lives in Austin, Texas, where he and his wife Emily Chammah co-organize The Insider Prize, a fiction and essay contest for incarcerated writers sponsored by American Short Fiction. Follow him on Twitter at @MauriceChammah.
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