I am so delighted to be here this morning to celebrate the career of Michael Meltsner. I had to sneak away from across the river because today is Harvard Law School’s bicentennial celebration. Although Michael has not quite reached the age of 200, it was a no brainer for me as to which celebration to attend.
But where to begin? Michael has done more in one career than one might think humanly possible. As we have heard, he has been a law teacher, a scholar, a dean, an international lecturer, and an educational innovator at my own school, where he spent five years revamping Harvard’s legal research and writing curriculum. He has been a civil rights lawyer, a novelist, a playwright, a memoirist, and even a marriage and family therapist. So it’s hard to know where to start (or end, as we each have been given only 10-15 minutes to speak). I have decided to focus on a small slice of Michael’s resume—on his work challenging the American death penalty that led to the landmark (though short-lived) victory in Furman v. Georgia in 1972 and on Michael’s wonderful book about the constitutional litigation campaign that led up to the Furman decision, Cruel and Unusual: The Supreme Court and Capital Punishment, which was originally published in 1973 (and republished in a second edition in 2011).
I have brought my own well-loved copies of both editions with me—not to play Oprah, but rather as an illustration of how indispensable Michael’s work has been to my own career as a death penalty scholar and activist. Last year, my brother Jordan and I published our own book on the Supreme Court’s constitutional regulation of the death penalty, Courting Death, which bears exactly the same subtitle as Michael’s—“The Supreme Court and Capital Punishment.” This was not a mistake or oversight (or sneaky plagiarism); rather it was an act of deliberate homage to Michael’s masterwork. Imitation, after all, is the sincerest form of flattery. Michael’s book set a high bar for any future work, as it was both an innovation and an instant classic; it took seriously but also critiqued and contextualized the Supreme Court’s constitutional engagement with an intensely hot social issue. In addition to its seriousness and depth, Cruel and Unusual is also compulsively readable—engagingly written, and paced with the urgency of a thriller. Every time I return to it, I find myself pulled along by the narrative, even though at this point I know it ends.
In Cruel and Unusual, Michael describes from the inside the nearly decade-long constitutional litigation campaign waged by the NAACP LDF against the American death penalty that culminated in the Court’s 1972 decision in Furman. Michael joined the LDF shortly after graduating from law school—hired by no less than Thurgood Marshall shortly before Marshall left the Fund in 1961, when he was appointed to a judgeship on the Second Circuit by President Kennedy. Here’s Michael on what it was like to be an LDF attorney smack dab in the middle of the Civil Rights Movement (p. 9): “At the high-water mark of civil rights activity, lawyering for the Fund was like being a member of one of those highly trained, specially assembled raider groups which are occasionally deployed in wartime, but regularly portrayed in films.”
Michael explains with timeless eloquence the lure of LDF’s work over the ease of private practice that was at his fingertips as a recent Yale Law School graduate (p. 14): “Though the training and working conditions of many of my law school classmates were lavish and their pay astonishing, it seemed to me, and to several other young lawyers who eagerly joined the Fund’s staff when jobs were available, that they abandoned too much in return. A job at the Fund offered me a chance to deploy my naturally combative urges on behalf of the underdog and to make my mark in the world.”
The LDF was galvanized to take on the issue of the death penalty by Justice Arthur Goldberg’s dissent from denial of certiorari in a 1963 case, Rudolph v. Alabama, in which a black man was sentenced to death for the rape of a white woman in the Deep South. Goldberg argued in his dissent, joined by Justices William Brennan and William O. Douglas—just one Justice shy of the four needed for a grant of certiorari—that the Court should take up the constitutionality of the death penalty for the crime of rape on the grounds that death was an outmoded and excessive punishment for a crime short of murder.
We now know—from Evan Mandery’s terrific book, A Wild Justice—that Goldberg agreed to remove from his dissent, at the urging of Chief Justice Earl Warren, any mention of race as a reason to take up the issue of the death penalty for the crime of rape. Death for rape was a punishment almost exclusively reserved for black men convicted of raping white women in the South. Although rape is and has always been a largely intra-racial crime (white people mostly rape white people, and black people mostly rape black people), between 1930 and the mid-1960’s approximately 90% of those executed for rape were black men, overwhelmingly in cases where the victim was white. But Chief Justice Warren—the author and architect of Brown v. Board of Education less than a decade previously—did not want black rapists to become the face of constitutional racial equality; perhaps he felt that it would complicate the difficult road the Court faced in enforcing Brown in a reluctant, even furious, South.
But Michael makes us see how apparent it was to the LDF lawyers what Rudolph was really about and why it was the nation’s pre-eminent Civil Rights organization that should naturally lead the charge against the American death penalty. In a beautiful passage, Michael describes his answer to skeptics who asked why he (and by extension the LDF) was choosing to devote so much energy to the defense of convicted murderers and rapists (p. 38): “A nation’s criminal law is a subtle barometer of its fears and confidences. . . . Whatever it may have been in the past, maturity in nations now resides in their capacity to distinguish between the actual threat posed by the criminal (the outsider, the enemy) and the distorted perception of that threat yielded by man’s chaotic mental life.” Words for our times, indeed!
Michael goes on to describe his picnic lunch with LDF colleagues Frank Heffron (here today to celebrate with Michael!) and Leroy Clark, “sprawled on the thin Central Park grass” (p. 30) shortly after Goldberg’s dissent from denial at which the plan to take on the death penalty as an issue of racial justice was born. The LDF hired Marvin Wolfgang to do a statistical study about the racially disparate use of the death penalty for rape, which led to a different kind of “freedom riding” as Wolfgang sent teams of students to Southern courthouses to collect the necessary data.
As the 1960s progressed, the LDF developed its now-famous “moratorium” strategy, by which the LDF sought to bring executions to a halt across the entire country. Here’s how Michael describes the thinking behind the moratorium strategy (p. 107): “One way to promote this end was to raise the entire range of capital punishment arguments in all cases where execution was imminent, thereby stopping the killing and eventually presenting any resumption of it as likely to lead to a blood bath. The politics of abolition boiled down to this: for each year the United States went without executions, the more hollow would ring claims that the American people could not do without them; the longer death-row inmates waited, the greater their numbers, the more difficult it would be for the courts to permit the first execution.”
In pursuing this strategy, the LDF raised not only the racial discrimination issue, but also a long list of other plausible constitutional challenges to the prevailing practice of capital punishment in America:
• that death was a disproportionate punishment for crimes (like rape, armed robbery, and kidnaping) in which no life was taken;
• that “unitary” capital proceedings (in which guilt and punishment were determined without a separate sentencing hearing) burdened the defendant’s right not to testify at trial;
• that “death qualification” of capital juries (by which prospective jurors with conscientious scruples against the death penalty were disqualified from serving) unconstitutionally skewed capital juries toward guilt and toward death; and
• that the absence of any standards to guide jury sentencing discretion led to unconstitutionally arbitrary and discriminatory results.
The LDF, working in cooperation with the more far-flung ACLU, employed extremely innovative legal tactics, including the nationwide distribution of “Last Aid Kits” laying out each of these arguments for local defense attorneys, as well as the use of class action litigation, which brought executions in Florida to an extended (though temporary) halt. The moratorium strategy was extraordinarily bold and ambitious, but perhaps the most extraordinary thing about it was that it worked. Executions had been declining prior to 1963, but the LDF brought them down to a trickle and then to a full stop. In 1966, there was one execution; in 1967, there were two. But then in 1968, ’69, ’70, ’71, and ’72 (the year of Furman), there were none. Zero. Executions would not resume again until 1977, the year after the Supreme Court reinstated the death penalty in Gregg v. Georgia, when Gary Gilmore waived his appeals in Utah to become the first person to be executed in the “modern” era of resumed, and supposedly reformed, capital punishment in America.
As for the Furman decision itself, short-lived though it turned out to be, Michael not only shows us the strategy that produced it, he also takes us into the courtroom for the oral argument. He recounts, among other memorable moments, Tony Amsterdam telling the Court that if a plausible deterrent effect were held to be enough to render a punishment constitutional, then the Court would have to approve “boiling in oil” (p. 273). Michael also lets us know how pessimistic the LDF lawyers were about their chances in Furman and how, as the case was pending, they glumly planned strategies to forestall executions when they lost.
We the readers thus get to share the surprise and excitement of victory. Michael describes the scene at the LDF office when Furman was announced (p. 290): “Within minutes the story began to appear on every major wire-service ticker. Calls jammed the LDF switchboard. Lawyers and secretaries produced transistor radios. General disbelief. Numbness. Tears in people’s eyes. Slowly smiles replaced gaping jaws; laughter and embraces filled the halls. ‘This place looks like we just landed a man on the moon,’ [one of the LDF lawyers] shouted into a phone.”
Ever nuanced and fair-minded, Michael doesn’t end his 1973 book (amazingly published the year immediately following the Court’s decision in Furman) with a brightly complacent, “And that’s how the death penalty ended in the United States!” Rather, Michael was well aware that “[t]he moral force of the majority decision [was] diluted by five separate  opinions” (p. 303). Even in 1973, he saw the dark clouds forming: in that year’s legislative session, “bills to restore capital punishment would be introduced in three-fourths of the former death penalty states, as well as in Michigan, which had abolished 127 years earlier” (p. 308).
Despite these ominous trends and the 1976 re-instatement of capital punishment by the Supreme Court that they portended (which occurred after the book’s publication), Michael leaves us with words of hope—words that give me strength in my own work to keep shining a harsh and unrelenting light on the pernicious practice of state execution (p. 316):
“The Court [in Furman], of course, spoke in legal, not moral terms, but the Justices asserted the preciousness of life despite claims advanced by forces far more powerful than the condemned that violence is necessary and wise. They acted to limit the human capacity for destructiveness against the strong tide of the urge to punish. A cloudy historical and empirical record was read to contain more respect than disregard for human beings. Although the majority opinions limited the scope of the result and left potential avenues open for the political process to explore, reverence for life—even life stunted, twisted, violent, or vexed—illuminated them all.”
Thank you, Michael.