Taking the Stand

by Alan Dershowitz

  Usually, though not always, I am called after the defendant has been convicted and is seeking an appeal or habeas corpus, where the prospects for success are quite low. Yet I have won the vast majority of the death cases in which I played a significant role. In no case has one of my clients been executed.

  The reason I have won so many death cases has more to do with science than law. Most of my death cases were centered on forensics. Even before the popularity of such television shows as CSI, Bones, and Dexter, I had developed an expertise in the scientific aspects of homicide cases. My academic focus has been on the interface of law and science, and so it was natural for me to employ my expertise in the courtroom. Many of my death cases have become the basis for films, television shows, and books.3 Death is not only different—it is the stuff of drama.

  In addition to the individual cases involving death that I have litigated, I have also played a significant role in the campaign to abolish or limit the death penalty. This began more than a half century ago, when I was a law clerk responsible for drafting the first judicial opinion challenging the constitutionality of the death penalty.4

  MY ROLE IN CHALLENGING THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT

  As recounted earlier, my initial assignment as Justice Goldberg’s law clerk was to write a memorandum on the unconstitutionality of the death penalty. Justice Goldberg told me of his plan to use the Eighth Amendment—which prohibits “cruel and unusual punishment”—to abolish the death penalty.5 “What could be more cruel than the deliberate decision by the state to take a human life?” he asked rhetorically.

  I agreed that the death penalty was cruel, but I reminded the justice that for a punishment to be unconstitutional under the Eighth Amendment, it must be both cruel and unusual, and the death penalty was anything but unusual—either at the time the Eighth Amendment was ratified or now. “The Colonists were executing people all over the place,” I said, and “even today states such as Texas, Alabama, and Florida are executing not only murderers but rapists and armed robbers.”

  Justice Goldberg looked at me somberly and spoke: “Therein lies the beauty of our Bill of Rights. It’s an evolving document. It means something different today than it meant in 1792.”6 He continued: “It’s true that the death penalty is not yet unusual, but we can help make it so. I don’t expect to be able to abolish capital punishment in one fell swoop, but we must begin a process that will lead to its becoming unusual and eventually anachronistic.”

  He assigned me to search among the death penalty petitions that were then pending before the court and to try to find a few compelling cases that would allow him to write an opinion raising questions about the constitutionality of the death penalty as applied to the facts of those cases. He had already selected a rape case from Alabama in which a black man had been sentenced to death for raping a white woman. I found several others in which armed robbers and murderers who were mentally ill were sentenced to death.

  I was enthusiastic about my assignment because I had long opposed capital punishment. As a high school debater, I argued against it. I still have a handwritten note card from my first debate, in which I advocated the “abolision [sic] of C.P.” because “most murderers are products of invirnment [sic].”7 In law school I wrote to the prime minister of Israel arguing that even Adolf Eichmann should be spared the noose. As Evan Mandery, whose book A Wild Justice details the history of the campaign to declare the death penalty unconstitutional, put it:

  Goldberg’s choice of Dershowitz to write his capital punishment opinion was no coincidence. Goldberg passed on the issue during his first year on the bench in part because he did not feel that he had the right clerks. He inherited his first set of clerks from Felix Frankfurter. Though he had high regard for the retiring justice’s selections, he didn’t feel they were right for the job.… In Alan Dershowitz, Goldberg found a kindred spirit and a life story that was in many ways the New York parallel of his own Chicago childhood.… Also like Goldberg, Dershowitz had an aversion to capital punishment, which traced back to his childhood.8

  Justice Goldberg said that he saw me as his “perfect” collaborator on this “uphill battle.”9

  I set to work on the capital punishment project but found no suggestion in the case law that any court had ever considered the death penalty to be of questionable constitutionality. Not even the American Civil Liberties Union challenged the constitutionality of capital punishment. Just five years earlier, Chief Justice Earl Warren had written in Trop v. Dulles that “whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted it cannot be said to violate the constitutional concept of cruelty.”10

  I duly reported this to Justice Goldberg, suggesting that if even the liberal chief justice believed that the death penalty was constitutional, what chance did he have of getting a serious hearing for his view that the cruel and unusual punishment clause should now be construed to prohibit the imposition of capital punishment? Justice Goldberg asked me to talk to Justice Brennan and see what his views were. Unless Justice Brennan agreed to join, the entire project would be scuttled, because Justice Goldberg, the court’s rookie, did not want to “be out there alone,” against the chief justice and the rest of the court.

  I had previously met Justice Brennan several times over the preceding few years, since his son Bill was my classmate and moot-court partner at Yale Law School. I had also had lunch several times with the justice and his friend Judge David Bazelon. But none of our discussions had been substantive, and I nervously anticipated the task of discussing an important issue with one of my judicial heroes.

  Justice Brennan

  My conversation with Justice Brennan marked the beginning of what developed into a lifelong friendship and mutual admiration society. One of my great treasures is a handwritten letter from the justice in 1982 that includes the following:

  There are winds swirling these days that too few resist—it’s a comfort to know that outside there are steadfast champions who are putting up a gallant fight. You are first among them and that’s a matter of special pride for those of us who have followed your career with increasing satisfaction.

  I brought to the meeting a rough draft of the memorandum11 I was working on, but Justice Brennan did not want to look at it. He asked me to describe the results of my research, promising to read the memorandum later. I stated the nascent constitutional case against the death penalty as best I could. I told him that Weems v. United States,12 an old case from 1910, could be read as recognizing the following tests for whether punishment was “cruel and unusual”: (1) if a less severe one can as effectively achieve the permissible ends of punishment (that is, deterrence, isolation, rehabilitation); (2) if it offends the contemporary sense of decency (for example, torture); (3) if the evil it produces is disproportionally higher than the harm it seeks to prevent (the death penalty for economic crimes).

  In addition to these abstract formulations, I also told Justice Brennan that my research had disclosed a pattern of unequal application of the death penalty on racial grounds. I cited national prison statistics showing that over a fifteen-year period, 233 blacks were executed for rape in the United States, while only 26 whites were executed for that crime, though whites committed many more rapes than blacks.

  Justice Brennan encouraged me to continue my research, without making any promises. Several weeks later, Justice Goldberg told me that Justice Brennan had agreed to join a short dissent from the denial of certiorari in Rudolph v. Alabama (1963)13—the case involving imposition of the death penalty on a black man who was convicted of raping a white woman. Justice William O. Douglas signed on as well. The dissenters invited the bar to address the following questions, which they deemed “relevant and worthy of argument and consideration”:

  1. In light of the trend both in the country and
throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate “evolving standards of decency that mark the progress of [our] maturing society,” or “standards of decency more or less universally accepted”?

  2. Is the taking of human life to protect a value other than human life consistent with the constitutional proscription against “punishments which by their excessive … severity are greatly disproportional to the offenses charged”?

  3. Can the permissible aims of punishment (e.g., deterrence, isolation, rehabilitation) be achieved as effectively by punishing rape less severely than by death …; if so, does the imposition of the death penalty for rape constitute “unnecessary cruelty”?14

  I had drafted these questions based on my research and conversations with Justices Goldberg and Brennan.

  As soon as the dissent was published, there was an immediate reaction. Conservative journalists had a field day lambasting the very notion that a court could strike down a long-standing punishment that is explicitly referred to in the Constitution.

  One extreme criticism appeared in the New Hampshire Union Leader under the banner headline U.S. SUPREME COURT TRIO ENCOURAGES RAPE:

  The three U.S. Supreme Court justices, Goldberg, Brennan, Douglas, raised the question of whether it was proper to condemn a man to death for the crime of rape if there has been no endangering of the life of the victim. This incredible opinion, of course, can serve only to encourage would-be rapists. These fiends, freed from the fear of the death penalty for their foul deed, … will be inclined to take a chance.

  Thus, not content with forbidding our schoolchildren to pray in school, not content with banishing Bible reading from our schools, and not content letting every type of filthy book be published, at least three members of the Supreme Court are now out to encourage rape.15

  The editorial neglected to mention that New Hampshire had abolished the death penalty for rape generations ago and had one of the lowest rates of rape in the country—far lower than states that still executed convicted rapists.

  Several state courts went out of their way to announce their disagreement with the dissent. The Georgia Supreme Court questioned

  the judicial right of any American judge to construe the American Constitution contrary to its apparent meaning, the American history of the clause, and its construction by American courts, simply because the numerous nations and States have abandoned capital punishment for rape. First we believe the history of no nation will show the high values of woman’s virtue and purity that America has shown. We would regret to see the day when this freedom loving country would lower our respect for womanhood or lessen her legal protection for no better reason than that many or even all other countries have done so. She is entitled to every legal protection of her body, her decency, her purity and good name.16

  The court went on to reject this attempt to reduce the protection of the

  mothers of mankind, the cornerstone of civilized society, and the zenith of God’s creation, against a crime more horrible than death, which is the forcible sexual invasion of her body, the temple of her soul, thereby soiling for life her purity, the most precious attribute of all mankind.17

  Georgia, at that time, had one of the worst records in the nation with regard to women’s rights.

  There was scholarly criticism as well. In the Harvard Law Review, Professor Herbert Packer of Stanford correctly identified Justice Goldberg’s ultimate goal and then criticized the means he had selected to implement it:

  What Justice Goldberg may really be troubled about is not the death penalty for rape but the death penalty. The problem may not be one of proportionality but of mode of punishment, the problem that concerned the framers of the eighth amendment and to which its provisions still seem most relevant. The Supreme Court is obviously not about to declare that the death penalty simpliciter is so cruel and unusual as to be constitutionally intolerable. Other social forces will have to work us closer than we are now to the point at which a judicial coup de grace becomes more than mere fiat. Meanwhile, there may well be legitimate devices for judicial control of the administration of the death penalty … [but] the device proposed by Justice Goldberg is not one of them.18

  These were the short-term reactions. Far more important, however, was the long-term reaction of the bar, especially the American Civil Liberties Union and the NAACP, which combined forces to establish a death penalty litigation project designed to take up the challenge of the dissenting opinion in Rudolph. The history of this project has been recounted brilliantly by Professor Michael Meltsner in his book Cruel and Unusual,19 and I could not possibly improve upon it here. But the results achieved were dramatic. Meltsner and the other members of the Legal Defense Fund, a group that included a number of talented and committed lawyers, litigated hundreds of cases on behalf of defendants sentenced to death, and in many of these cases, they succeeded in holding the executioner at bay until the Supreme Court was ready to consider the constitutionality of the death penalty. I consulted on a number of these cases, lending insights from my experience as the law clerk who had drafted the Rudolph dissent.

  The strategy was simple in outline: The Supreme Court should not be allowed the luxury of deciding the issue of capital punishment as an abstraction; instead, it must be confronted with the concrete responsibility of determining the immediate fates of many hundreds of condemned persons at the same time. In this way, the court could not evade the issue, or lightly refuse to decide it if the court’s refusal would result in the specter of mass executions of hundreds of convicts. The court could decline to decide the ultimate issue—the constitutionality of capital punishment—if in doing so it could find some other way of keeping alive those on death row. And the legal team always provided the court with this other way—a narrower issue, usually in the form of an irregularity in the procedure by which the death penalty was imposed or administered.

  Pursuant to this strategy, the Supreme Court decided a number of cases involving the administration of the death penalty; in each of these cases the court declined to consider the ultimate issue, but it always ruled in favor of the doomed, thereby sparing their lives. With the passage of each year, the number of those on death row increased and the stakes grew higher.

  Then in 1971 the court took its first turn backwards: It held that a condemned person’s constitutional rights were not violated “by permitting the jury to impose the death penalty without any governing standards”20 It looked like the string might have been played out: There were no more “narrow” procedural grounds. The court would have to confront the ultimate issue. But it was not the same court that had been sitting when the strategy was devised; there were four new Nixon appointees, and it was clear that some of them believed the death penalty to be constitutional. The umpires had changed after the strategy of the game had been implemented.

  The drama intensified. The court let it be known that it was ready to decide the ultimate issue. Knowledgeable lawyers—counting noses—were predicting that the death penalty would be sustained by a narrow majority. Some thought that it might be struck down for rape but sustained for murder. Some predicted that the court would once again find—or contrive—a reason for avoiding the ultimate issue. A few, of optimistic bent, kept the faith and expressed the belief that the court—even this court—would simply not send hundreds to their death.

  And then came a major and unanticipated break. The California Supreme Court—perhaps the most influential state court in the nation—ruled that its constitution (which had similar wording to the federal Constitution) forbade the death penalty.21 On the last day of the United States Supreme Court’s 1971 term, the decision was rendered in a case called Furman v. Georgia.22 The court ruled that the death penalty, as administered in this country, was unconstitutional. The argument proposed by Justice Goldberg on my first day as his law clerk had now been accepted by a majority of the justices. Goldberg called me in joy, offering mutua
l congratulations and crediting me with implementing his idea. I was thrilled.

  But this would not be the high court’s last word on the subject. Chief Justice Burger, in his dissenting opinion, provided the states with a road map as to how to draft death penalty statutes that might pass constitutional muster.23 What ensued was a constitutional Ping-Pong match between proponents of capital punishment and abolitionists; the proponents would draft new statutes, and the abolitionists would challenge them in court. Justice Goldberg, now in private practice, and I continued to play a role in this life-and-death conflict by writing joint articles for newspapers and law reviews.24

  In one article I wrote after observing the trial and sentencing of John Demjanjuk—a Ukrainian death camp guard who was responsible for brutalizing and murdering numerous Jews—I made “the case against executing” him, regardless of whether he was Ivan the Terrible of Treblinka, or merely Ivan the Very Bad of Sobibor. I began by acknowledging that

  if ever there was a case that cried out for the death penalty, it would be that of John Demjanjuk. There can be no doubt whatever that he was an SS-trained death camp guard who was complicitous in the mass murder of Jews. He repeatedly lied about his past and he shows no remorse.25

  I then argued that there

  is a corollary to the proposition that if anybody deserves capital punishment, it is John Demjanjuk. The corollary is that if John Demjanjuk is not executed, then no one should ever be. Sparing Demjanjuk’s life may thus save the lives of many others by strengthening the case against capital punishment throughout the world. Israel could be a beacon to the world if it withheld the noose from the neck of one on whom it would seem to fit so justifiably.26