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The historic decision came in 1972, after five years without an execution, and just as fierce public majorities were forming in support of capital punishment. In Furman vs. Georgia, the Supreme Court nullified all 40 death-penalty statutes and the sentences of 629 death-row inmates, declaring that judges and juries had intolerably wide discretion to impose death or not. This lack of standards made the death sentence "freakishly imposed" on "a capriciously selected random handful" of murderers, wrote Justice Potter Stewart. "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." Within a few years, 37 state legislatures had passed statutes designed especially to meet the court's objections.
Most of the new laws went too far, mandating death for certain murders regardless of circumstances, and were overturned by the court. But the statutes adopted by Georgia, Florida and Texas were ruled acceptable. Death is a constitutional punishment, the court decided, not cruel or unusual as long as the judge and jury have given due consideration to the murderer's character and the particulars of his crime, the "mitigating factors."* Against these are weighed the aggravating factors that distinguish capital murder from ordinary homicide.
The court's decisions since have essentially been refinements and tidying addenda. Last January in Eddings vs. Oklahoma, for instance, the Justices ruled that the judge or jury must consider any mitigating factor the convict claims. Yet to many observers, that sounds like a return toward uncontrollable discretion, the very flaw the court prohibited in 1972. Says former L.D.F. Lawyer David Kendall: "We're right back to Furman."
Abolitionists hope so, anyway. They are now arguing a subtle paradox. The prudence and selectivity required by the court, they say, means that executions will be carried out only rarely, and thus will remain arbitrary and freakish, a sort of death lottery. There is always caprice along the way to death row. Prosecutors have great leeway in deciding which homicides to try as capital murders. A killer can be persuaded to testify against an accomplice to save his own life. Brooks was convicted and executed; for the same murder his partner must serve only eight more years in prison.
The Supreme Court's refusal last month to stay Brooks' execution does not give abolitionists much hope for a new landmark ruling in their favor. "We've become technicians," says the L.D.F.'s Berger of his small litigious corps. "The great moral issues have been removed from the legal arena."
At the time of Furman it was widely recognized that the system was unquestionably stacked against black defendants, especially in the "death belt" of the South. Some of the racism has been wrung out. Yet clear bias remains, much attributable to prosecutorial choices. A recent study of homicide cases in Houston's Harris County is troubling. In cases where a black or Chicano had killed a white, 65% of defendants were tried for capital murder; only 25% of whites who killed a black or Chicano faced the death penalty. "I don't think it's overt racism," says University of Texas Law