Tag Archives: lewis powell

1991: Warren McCleskey

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Twenty years ago today, Warren McCleskey died in Georgia’s electric chair for the murder of a police officer.

Yet the “question reverberates: Did Warren McCleskey deserve the chair? For the question to outlive him is a damning commentary on capital punishment in the United States.”

The most reverberating commentary on this case was the 1987 Supreme Court decision McCleskey v. Kemp — a landmark 5-4 ruling that still shapes the way judges handle purported racial discrimination in the criminal justice system.

McCleskey (the decision, not the man) “marked the end of an era in death penalty jurisprudence … reject[ing] the last major challenge to the death penalty in America” from the generation of legal tinkering reaching back to the 1960s.

McCleskey v. Kemp was decided on April 22, 1987, at which time just 70 humans had been executed since the “modern” era of capital punishment began in the 1970s. (Today, the count is well beyond 1,200.)

The victims attributed to those 70 were 83% white (77 of 93),* even though blacks and whites are murder victims in roughly equal numbers — suggesting on its face that white victims are treated as disproportionately “valuable” by prosecutors, juries, and/or judges. This was, prospectively, the case with Warren McCleskey himself, an African American who in the course of an armed robbery had gunned down (or maybe not: see below) a white off-duty policeman.

McCleskey’s appellate team marshaled a statistical study by Iowa Prof. David Baldus indicating that black murderers (to a small extent) and killers of white victims (to a greater extent) were indeed more likely to receive a death sentence in Georgia, even when controlling for dozens of other variables. “According to this model,” wrote Justice Lewis Powell for the majority, “black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.”

Though it accepted evidence of a discriminatory pattern,** the high court nevertheless ruled that McCleskey was not entitled to appellate relief unless he could demonstrate that that it was at work in his specific case.

And with some reason: the import of granting constitutional relief to a claim of “endemic racism in the system” would open a Pandora’s box of appeals from America’s burgeoning carceral state.

McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system … if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.

Let justice be done though the heavens fall?† Not on our dime, buddy.

This reasoning too backtracked from equal protection concerns that had helped lead a similarly bare 5-4 majority to strike down then-existing capital statutes 15 years before in an appeal originating from the same state — Furman v. Georgia. That old regime had then been replaced with a death penalty system supposedly capable of minimizing arbitrariness. McCleskey served notice that justices wouldn’t be going out of their way to hunt arbitrariness any time soon.

The Court’s remaining liberal lions — it still had such a thing in 1987 — dissented furiously from McCleskey. William Brennan replied to the majority:

Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.

He also found “fear that recognition of McCleskey’s claim would open the door to widespread challenges … seems to suggest a fear of too much justice.”

mccleskey_presentation_314

Brennan was on the losing side of this judgment in a larger historical sense as well — at least, the brief span of history to unfold since Warren McCleskey sat in the electric chair.

McCleskey author Lewis Powell retired a few weeks after issuing it, and not long thereafter expressed regret for the McCleskey decision.‡ Relentless death penalty foes Brennan and Thurgood Marshall would hang up the spurs within a few years. (The circus Senate hearing to place Clarence Thomas in Thurgood Marshall’s seat was ongoing when Warren McCleskey finally died.)

But the deciding vote in McCleskey was cast by freshman Reagan-appointed justice Antonin Scalia, and he’s still going strong.

Scalia was then the Court’s emerging conservative paladin, though he was so new to the Court that McCleskey’s litigators hoped he might be amenable to their suit as a swing vote. Far from it: after Thurgood Marshall’s death in the early 1990s, his donated papers were found to contain a Scalia memo that rubbished the McCleskey majority’s mere consideration of the Baldus study.

I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell’s draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.

Shorter Scalia: racism happens, so what?§ (Ultimately, Scalia opted not to file a separate opinion explicitly making this case; he just signed on to the majority opinion.)

As squishy regret-prone jurists have left Scalia’s Court since, and hard-right ideologues joined it, 1987’s militant reactionary is now one Rick Perry victory away from being the highest court’s median vote. Now that’s moving the Overton Window.

As one might imagine, death penalty jurisprudence at One First Street NE in these latter days has become correspondingly rougher — and the problems raised by McCleskey have scarcely abated.

Although the McCleskey case is what our day’s principal is best known for, he was also caught up in one of the more everyday — but not the less disreputable — toils of the system: the phony jailhouse informant. Very late in the appeals process, McCleskey’s lawyers were finally able to show that the fellow-prisoner who testified that McCleskey admitted the shooting to him was in fact a police plant operating on a quid pro quo to reduce his own sentence. (It’s amazing how often defendants spontaneously confess to these guys; the Troy Davis case which climaxed last week also featured a jailhouse snitch.) Somehow, prosecutors forgot all along to mention that arrangement even when directly asked.

The Supremes ruled, Kafkaesquely, that this issue was procedurally out of order because McCleskey hadn’t raised it earlier, neatly ignoring that the reason he hadn’t raised it was that prosecutors were actively concealing the fact. That’s the subject of the other SCOTUS case under our man’s name, McCleskey v. Zant.

(At issue was whether McCleskey was himself the triggerman. Since he was part of the robbery gang, he was legally on the hook for capital murder whether or not he personally fired the shot; but, his death sentence turned in reality on the jury’s belief that McCleskey was the individual killer — a detail supplied by the suspect police informant. None of McCleskey’s confederates faced execution.)

The final drama this date was a “chaotic” mess of last-minute legal maneuverings, with McCleskey strapped into the chair at one point, then interrupted from his last statement to be returned to his cell, then finally hauled back to the lethal device after an early-morning telephone poll of Supreme Court justices.

* Execution demographic counts via the Death Penalty Information Center’s executions database.

** While the McCleskey court accepted Prof. Baldus’s statistical interpretations even while rejecting their constitutional import, a vigorous pro-death penalty case is made here against the reading that the modern American death penalty is racially discriminatory to any great extent.

† This Latin phrase — fiat justitia ruat caelum — is actually engraved above the sitting justices at the Georgia Supreme Court.

‡ The regret was about more than Warren McCleskey; Powell’s biographer described a complete change of heart in the June 23, 1994 New York Times:

when the retired Justice Powell said he had changed his mind about the McCleskey case, I thought he meant that he would now accept the [Baldus] statistical argument.

“No,” he replied, “I would vote the other way in any capital case … I have come to think that capital punishment should be abolished.” …

Justice Powell’s experience taught him that the death penalty cannot be decently administered. As actually enforced, capital punishment brings the law itself into disrepute.

§ See Dennis Dorin, “Far Right of the Mainstream: Racism, Rights, and Remedies from the Perspective of Justice Antonin Scalia’s McCleskey Memorandum,” Mercer Law Review, 1994.

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1865: Four for Abraham Lincoln’s assassination

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On a sweltering July 7, 1865, a mere 12 weeks after Abraham Lincoln was shot at Ford’s Theater, four of his assassin’s accomplices were hanged in the courtyard of the District of Columbia’s Washington Arsenal — present-day Fort McNair, and specifically its tennis courts.

Booth, on the far left, playing Marc Antony in Julius Caesar opposite his brothers. He had Brutus’ example in mind, as he wrote in his diary while on the run: “with every man’s hand against me, I am here in despair. And why? For doing what Brutus was honored for.”

The exact nature of the conspiracy against the man who had seen the North to victory in the Civil War has been debated ever since actor John Wilkes Booth lodged a ball from his one-shot Derringer behind Honest Abe’s ear. But it was a conspiracy — an astoundingly bold one.

Simultaneous with Booth’s successful attack upon Lincoln, there was an unsuccessful attempt to kill Secretary of State William Seward; it would emerge in the investigation that another man had been detailed to murder Vice President Andrew Johnson, but got drunk and chickened out. The apparent upshot: with the President and Vice President dead, new national elections would be required to replace the Senator who would become acting president — and with the Secretary of State dead too, there’d be nobody to implement them. Booth was trying to paralyze the North with its own constitutional machinery in some desperate hope of reviving the defeated South.

Ten Against D.C.

Hundreds were detained in the stunning assassination’s immediate aftermath, but ten would ultimately be the federals’ targets. A massive manhunt pursued Booth through southern Maryland and into Virginia, where he was killed in a shootout. John Surratt, who had conspired with Booth in an earlier plot to kidnap the president — that failed plot had been reconfigured into the assassination — escaped from the country.

The other eight were rounded up and stashed at the Arsenal to face a military tribunal. It was a highly controversial arrangement: the war had entered a gray area — Robert E. Lee’s surrender just days before the murder had effectively ended the war, but when the trial opened in May Confederate President Jefferson Davis was still at large, and the last Southern general wouldn’t lay down his arms until late June. The District of Columbia was still technically under martial law … so would it do to use a military court?

Military Tribunal

So the government asked itself: government, would you rather have looser evidentiary rules and a lower bar of conviction than you would have in civil court? The government duly produced for the government an opinion that the military characteristic of the assassination — that is, to help whatever southern war effort still obtained — licensed the government to use the military courts.

That didn’t sit well with everyone. One former Attorney General griped:

If the offenders are done to death by that tribunal, however truly guilty, they will pass for martyrs with half the world.

Indeed, a year later, the Supreme Court’s landmark ex parte Milligan ruling would forbid the use of military courts where civilian courts are open — which they were in Washington, D.C.

That, of course, was too late to help Booth’s comrades. It would be a military trial, with a majority vote needed for conviction and no right of appeal but to the president for the most infamous crime of the Republic. Everyone had a pretty good idea what the results would be.

A cartoon depicting the defendants as Gallow's (sic) Birds.

Rogues’ Gallery

Two of the four today were doomed from the outset under any juridical arrangement imaginable: Lewis Powell (also known as Lewis Paine or Lewis Payne) had made the attempt on Secretary of State Seward; David Herold had guided him there with the getaway horse, and later escaped along with Booth. They were in way past their eyeballs. George Atzerodt, the schmo who couldn’t rise to the occasion of popping Andrew Johnson, looks a bit more peripheral from the distance of a century and a half, but in the weeks following the assassination he was much too close to the action to have any hope. All received death sentences.

Two others — Michael O’Laughlen and Samuel Arnold — had been involved in Booth’s earlier scheme to kidnap the president, but didn’t seem to have much to do with the murder. Still another two — Ned Spangler and Dr. Samuel Mudd* — were lesser participants. They all received long prison sentences for their pains, and the three of them still surviving were pardoned by Andrew Johnson as he left the presidency in 1869.

That left Mary Surratt, mother of the fugitive John and the only woman in the dock, the focus of attention and controversy. The 42-year-old widow owned a downtown boardinghouse, plus a tavern of sufficient importance at a Prince George’s County, Maryland, crossroads, that its community was called Surrattsville.**

The conspirators met frequently in her lodgings; Surratt maintained her innocence beyond that, but evidence and witness testimony began to pile up heavily against her … especially when Seward assailant Lewis Powell wandered into her place looking for refuge right while the police were questioning her. Booth and Herold turned out to have made a pit stop at her Surrattsville tavern to pick up a package of guns that Mary had prepared for them.

Though Surratt’s avowal of ignorance was not widely believed, a gesture of presidential mercy was anticipated — many thought (and think) she went on trial as a virtual hostage for her absconded son, who declined to take the bait. Strangely, five members of the nine-judge panel who condemned Mary Surratt turned around and asked President Johnson for clemency. Johnson claimed never to have seen the memo, but his mind seemed pretty made up — when Surratt won a habeas corpus stay on the morning of her scheduled hanging, he promptly “specially-suspended” the writ specifically to hang her:

I, Andrew Johnson, President of the United States do hereby declare that the writ of habeas corpus had been heretofore suspended in such cases as this; and I do hereby specially-suspend this writ, and direct that you proceed to execute the order heretofore given upon the judgment of the Military Commission.

Harsh treatment, and possibly well-deserved, for the first woman executed by the U.S. government. Even so, it does seem a curious thing when all is said and done that the mother of “the nest that hatched the egg” was worth a special suspension of the Great Writ, and even the stagehand who just held Booth’s horse for him caught six years, but old Jeff Davis — who apart from having figureheaded a treasonous four-year insurrection was implicated for giving Booth’s kidnapping plot official Confederate sanction — got to retire to write his memoirs.

Fine pages on the Lincoln assassination are here, here and here. There are also contemporary newspaper accounts posted online as filed for The Boston Post and The New York Herald.

The Surratt houses, by the way, are still standing. The Maryland tavern is kept as the Surratt House Museum by the Surratt Society. The downtown boarding house is a Chinese restaurant … marked with a plaque remembering more momentous doings than bubble tea.

The Chinatown restaurant where Mary Surratt had her boarding house ...

... as marked by plaque ...

... and how it looked back then.

* The panel voted 5-4 to hang Mudd, a Maryland doctor who not only set the leg Booth broke when he leaped onto the stage after shooting Lincoln, but then misdirected Booth’s pursuers. However, the rules for the trial said a two-thirds majority was required for execution.

** They changed the name after the unpleasantness. Today, it’s Clinton, Maryland.

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