Professor shares history of capital punishment
The history of death penalty in the United States hinged on one enigmatic justice, said Evan Mandery, chair of the Department of Criminal Justice at John Jay College.
Mandery told the story of capital punishment in the Supreme Court at a speech yesterday at the Eagleton Institute of Politics on Douglass campus.
Mandery recently published “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” which discusses the almost-death of the death penalty before its revival over the years.
Mandery said he tries to teach law in a realistic way and teaches his students as though it is history being made. He also feels a burning desire to write, which has led him to publish both academic and fictional books.
A nonarbitrary death penalty is now considered constitutional, but 32 states have categories and rules breaking cases into those worthy of the death penalty, he said. He attributes that to the moratorium on the death penalty that took place between 1972 and 1976.
In 1972, no one thought the death penalty was unconstitutional, he said. It was considered natural, partially because the Constitution mentions capital punishment five times.
Personnel changes in the Supreme Court helped to reverse legal opinion on the subject, he said. Many of the original opponents related the subject to Judaism, which formed their view on the principles of punishment.
Studies of the death penalty in the South found the overwhelming majority of criminals given capital punishment were black, which indicated deeper issues with its use.
“Many said the protection of black murderers and rapists was a hit the court simply couldn’t take,” he said.
In response, the advocates simply took out all mentions of race in the version they handed to the court.
The National Association for the Advancement of Colored People became much more tied in with the issue and extended their advocacy to all races, he said. They decided to challenge every case they could find.
The court considered how to set standards for each case and when it would be reasonable to execute a convict. He said it was described as a “Pandora’s Box,” where many different factors could be considered about each case.
The justices left one summer break convinced they would vote in favor of the death penalty, he said. When they came back, several justices had changed their mind.
Byron White, former Associate Justice of the Supreme Court, became the center of the storm. Appointed by John Kennedy, White’s position on the decision changed the history of capital punishment.
White was a believer in legal ambiguity, a term that refers to the arbitrary nature of language, he said. He completely reversed his position because of a deal that would allow the issue to remain challenged on a practicality basis, rather than a matter of principle.
“I can tell you what his position was at 11 a.m., and I can tell you his position at 12 p.m. [of the same day],” he said.
The Supreme Court, in a 5-4 decision, ruled to halt capital punishments because of their misapplication. The decision allowed states to create their own procedures, as long as the sentencing was non-arbitrary and specified by law.
After the moratorium, popular support for the death penalty surprisingly soared. Mandery attributed the increase to other cases, such as Roe v. Wade that caused a backlash against the Supreme Court.
Now, many states have statues allowing or requiring the death penalty in certain cases, he said.
“All the justices who favored the death penalty said they opposed it before their deaths,” he said. “I can’t say to you what that means about capital punishment, but it calls into question the constitutionality of certain claims.”
Milton Heumann, professor in the Department of Political Science at Rutgers, said the lecture was part of the annual Stephen and Alice Evangelides series, which celebrates the memory of the two.
Esther Kang, a School of Arts and Sciences sophomore, said Mandery’s presentation was a great opportunity for political science majors.
“Before the event we have dinner with professors … and people who help out in the political science department, attorneys, and we even had a judge,” she said.
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