During the 1968 presidential campaign, the Republican candidate Richard M. Nixon made crime one of his benchmark issues and the Supreme Court his whipping boys. Upon his election in 1969, Nixon appointed Warren E. Burger to replace Earl Warren as chief justice and the Court became increasingly conservative. By early 1972 the liberal bloc was down to three justices, and some observers wondered if they would adopt an abolitionist position, even though world opinion seemed to have turned against capital punishment. But Amsterdam devised webs of intricate arguments designed to tie up the Court on several fronts for years to come. In January 1972 he returned to the Court to argue a major death penalty case, Furman v. Georgia. William Furman was a burglar whose pistol accidentally went off when he was fleeing a home, the bullet tearing through a screen and killing the owner. “If a penalty is generally, fairly and uniformly enforced,” Amsterdam argued, “then it will be thrown off the statute books as soon as the public can no longer accept it. But when the penalty is enforced for a discriminatorily selected few, then all the pressures which normally exist to strike an indecent penalty off the books no longer exist. The short of the matter is that when a penalty is so barbaric that it can gain public acceptance only by being rarely, arbitrarily and discriminatorily enforced, it plainly affronts the general standards of decency of the society.”20
A month after oral arguments had been heard in Furman, but before the final outcome of the case was announced, the California Supreme Court ruled 6–1 that the state’s capital punishment statute violated the state constitution’s ban on “cruel and unusual punishment,” and it vacated 107 death sentences.21 Some activists at the time concluded that there would never again be an execution in the United States. Soon they seemed to be proven right. The U.S. Supreme Court announced its decision in Furman on June 29, 1972, stunning many legal observers. It struck down the death penalty for the first time in U.S. history, invalidating all death penalty laws that existed at the time throughout the country. The nation’s entire capital punishment system was found unconstitutional. For the first time, the Court held that the death penalty laws as written violated the “cruel and unusual punishment” provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment. The Court found the death penalty had been administered in such a discriminatory, capricious, and arbitrary manner as to violate the Constitution, and two members of the majority held that the death penalty itself was unconstitutional regardless of how it was administered. Georgia was an electric chair state, and Justice Byron (“Whizzer”) White observed that Furman’s sentence seemed so freakishly arbitrary and capricious that he likened it to being struck by lightning.
The Supreme Court’s decision in Furman was the longest and most complex pronouncement in high court history, with each of the nine justices penning his own opinion. Finding points of agreement required the services of legal experts with a lot of time on their hands. By a 5–4 margin the Court did not rule the death penalty itself to be unconstitutional for all crimes and all circumstances, only under the specific laws by which it was applied.22 One justice, Brennan, who went the farthest in rejecting capital punishment per se, held that “death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment.”23 Nixon’s appointees formed a solid bloc in defense of the death penalty. In his lead dissent Chief Justice Burger referred to the “worldwide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight,” but he said the Court had to rely on its “written Constitution.”24
As a result of the decision, more than six hundred prisoners who had been sentenced to death between 1967 and 1972 had their death sentences lifted—the greatest mass reprieve in U.S. history.25 But Furman had left the door open to more contentious debate, making capital punishment what some scholars later called “the central doctrinal conflict of the 1970s.”26
Conservatives rallied to make the death penalty a hot-button political issue. Governor Ronald Reagan, who wanted to run for president, said he was “deeply shocked and disappointed” by the California court’s action, calling it “one more step toward totally disarming society in its fight against violence and crime.” Other Republicans teamed with law enforcement groups to restore the death penalty in the state by public referendum.27 Then the reaction to Furman added more fuel to the fire. All over the country, tough-on-crime politicians attacked “lenient” judges, and Democrats and Republicans alike scrambled to outdo themselves in supporting severe punitive penalties. In the wake of Furman, legislators in many states soon began to write new death penalty laws that would comply with the ruling. Within four years, thirty-four states responded by passing new capital punishment laws, and death rows around the country swelled to more than six hundred condemned prisoners—back to where it had been before. During the backlash to the Furman decision, only one state—Rhode Island—drafted its new death penalty statute with the gas chamber as its new method of execution. (Nobody was executed in it, and Rhode Island eventually abolished its death penalty in 1979.)28
But lethal gas, electrocution, hanging, and the firing squad all had a significant history in the United States. Their methods of administration were more than a line in the statute books—they had actually been carried out, and each method left its own paper trail. Some of the evidence showing exactly how executions had been performed could be found in the states’ own archival files. Like the Watergate tapes, such records had been compiled and kept by the government itself, and the evidence had never left state custody. Because of this unbroken chain, the evidence could prove particularly incriminating for the state. Evidence of botched, cruel, or torturous executions might make a specific method of execution susceptible to constitutional challenge on Eighth Amendment grounds.
California’s Governor Reagan was well aware of the realities of capital punishment, having experienced both the legal and political turmoil over the death penalty issue, and the messiness of an actual lethal gas execution. He had not forgotten about Aaron Mitchell. And as an experienced image maker he recognized the public’s distaste for the gas chamber in particular. But Reagan wanted to champion the death penalty, so he devised a smart political move.
Just as Vice President Spiro Agnew was about to resign on corruption charges and before President Nixon selected Representative Gerald Ford as his replacement, Reagan slyly suggested an alternative execution method that might overcome a variety of problems. “Being a former farmer and horse raiser,” he said, “I know what it’s like to try to eliminate an injured horse by shooting him. Now you call the veterinarian and the vet gives him a shot and the horse goes to sleep—that’s it.” (In addition to avoiding any explicit reference to lethal gas, Reagan’s example about killing a horse instead of a small animal such as a cat or dog avoided an obvious link to the gas chamber, since the usual method vets used to euthanize them was to put them in a portable gas chamber, not to give them a shot. A horse, however, was too big to fit in a veterinarian’s gas chamber.) Reagan continued, “I myself have wondered if maybe this isn’t part of our problem [with capital punishment], and maybe we should review and see if there aren’t even more humane methods now—the simple shot or tranquilizer.” In closing, he left another clue that he had not forgotten about the gas chamber and its eugenic ideals, saying, “I think maybe there should be more study of this to find out, if there’s a more humane way, can we still improve our humanity.”