What might have been: America without the death penalty

In 1976, the U.S. Supreme Court brought the death penalty back after a four year hiatus. 

In Gregg v. Georgia, 428 U.S. 153 (1976) the Court adopted the revised death penalty laws of Georgia, Florida and Texas.  The case was actually about the laws of five different states: Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana.

There were two dissenting justices in Gregg. Justices William Brennan and Thurgood Marshall did not agree with reauthorizing the death penalty.

At the end of his book, A Wild Justice, Evan Mandery shows how close the Supreme Court came to ending the death penalty.

 

Mandery asks “What if the constitutionality of the death penalty could have been decided by each justice at the end of his life, with the benefit of his full collected wisdom?”

Three justices who voted in the majority in Gregg had different opinions later in life. In 1991 Lewis Powell said the death penalty “serves no useful purpose.” In 1994, two decades after his votes the opposite way in 1976, Harry Blackmun famously declared: “From this day forward, I no longer shall tinker with the machinery of death.” No rule or procedure could make the application of capital punishment fair, he had concluded. In 2010 John Paul Stevens said that if he could change a single vote he cast on the bench, he would choose his decision to uphold the Texas [Gregg] death penalty statute.

Had those three justices expressed those opinions in 1976 America might not have a death penalty.

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