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Susan Estrich
23 Jul 2014
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The American Way of Death


I will readily admit that I have been all over the map when it comes to the death penalty.

As a young lawyer and law professor, I was opposed to it. Actually, it was easy to be against it. The evidence that it was being administered arbitrarily and unfairly was so overwhelming that the Supreme Court had effectively placed a moratorium on it. When it came back, in the late '70s, I was there, literally.

The first man to be executed after the moratorium was Gary Gilmore, who wanted to die. The second was a murderer named John Spenkelink, who didn't. His last appeal, the night before his death, was to the United States Supreme Court. He needed one justice to sign a stay before midnight to keep him alive. He needed four justices the next morning to agree that the case was worthy of the court's review and to keep the stay in force.

All the clerks were warned. It automatically went to the circuit justice, who was expected to deny it. Then they could go to one of the two justices, William Brennan and Thurgood Marshall, who were absolute opponents, but whose votes wouldn't get him past morning. Or they could go to one of the votes he would need in the morning, probably Potter Stewart. We all figured he'd go to Brennan or Marshall, and we could go home. He came to us — us being the court's junior member.

I drove an old yellow Maverick, and the overhead light was broken, so my co-clerk, who went on to become a leading death penalty defense lawyer and scholar, read out loud with the flashlight as we drove over to the justice's apartment. When we got there, we read it again with him, issue by issue: Was there any basis for concluding that a mistake was made?

We didn't come up with much, and then he called the other justice "in the middle" and went over it with him, and then we drove back with the unsigned papers and the windows down in case we threw up.

What if we had missed something? What if his lawyers had? We hadn't read a transcript; we just read the papers. Was he the white guy picked to go first and head off a parade of minorities? Why him?

We got back to the court at 11:45 p.m. and found Marshall, then in his later years, waiting with his pen out. The execution took place the next day.

By the time he retired, Justice John Paul Stevens was among the most outspoken critics of the way the death penalty is administered. We reminisced, decades later, about the care we had taken to review that application. It doesn't work that way anymore.

Even so, I came to view that, as a matter of principle, a society has every right to punish the worst of the worst. It was the murder of a pregnant woman at an ATM that did it for me — stabbed her in the stomach for some cash. It was a month after my son was born. Get the right guy, and you won't find me fighting to save him, I heard myself say. And it was true.

The "get the right guy" problem is not insignificant. Most of those on death row are brutal murderers. But no system is perfect, and ours doesn't aspire to be. So what percentage of error is tolerable when death is the penalty? And just how much are we willing to pay to achieve a tolerable error rate? The work of The Innocence Project, and other organizations, seems to show pretty clearly that it isn't enough.

Now there is the newest problem. Killing people isn't so easy. Or rather, as anyone who has lost a loved one to cancer could probably tell you, dying can be very hard. The drug companies don't want to be a part of the debate by way of making these drugs, states are afraid to disclose what they use, and the last execution took so long that the lawyers filed for a stay.

Did the dying man suffer? They're not sure. It's a public embarrassment, or so death penalty opponents are treating it. Is that an argument that we shouldn't be in the business of killing people? Maybe. I just can't help but think about how most people suffer in death, and none more than those who are viciously murdered.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



7 Comments | Post Comment
Some rules are easy. Thou shalt not kill.
Comment: #1
Posted by: Mark
Thu Jul 24, 2014 10:29 PM
Ma'am;... Technically, as society has the right to do wrong... Absolutely anything found necessary for the survival of a people is arguably right... The problem is that not everything a state or a society can do should be done... When a society has reached the end of its road, it is more inclined to do violence to its own and to others than at any other time... Those who push America into wars it cannot afford to have empires that never pay, and never have paid, are bringing us that much closer to the use of nuclear weapons...That act will use up all the good will and legitmacy we have in the eyes of the world..
If the death penalty were simple vengeance it would be fine... The way the Native Americans practiced it, and the way the Greek very early in history practiced it, no one but the family of the one condemned to death could execute them... They had to have that blood on their hands because any other killer would call for blood vengeance...To kill one of your own because he was such a screw up was a punishment in itself... Too often the victims of violence are ones own family... But the past is gone, and now the state pretends to take the guilt of bloodshed off our hands... Then; if Capital punishment is not vengeance, why do so many politicians defend it as vengeance... The injured parties are denied their justice to have some more murder... Every body pays extra for the privilage of capital punishment... And it clearly does not work at reducing bloody violence... Who is satisfied here but the politicians who appeal to the absolute worst qualities of our characters??? We are not improved by these deaths... We are made little by these death... And while there are too many things wrong with law as we know it to list here, it is enough to say that as long as people make mistakes, and do find the wrong people guilty, and can take into account so little of extenuating circumstances, we can take no hope from these executions... It is not a question of what society has a right to do, for it has every right... It is a question of whether it should do all that is within its power if shown that it injures society more than it heals society...
Comment: #2
Posted by: James A, Sweeney
Thu Jul 24, 2014 10:53 PM
Re: Mark
I agree. The same Commandment applies to the innocent unborn.
Comment: #3
Posted by: Oldtimer
Fri Jul 25, 2014 4:52 AM
Which brings us back to the problem of trying to equate a fertilized egg to a human baby - something that we will be unlikely to agree on, given the previous discussion of that topic here.
Comment: #4
Posted by: Mark
Fri Jul 25, 2014 7:06 AM
Does "I agree" mean that you oppose the death penalty?
Comment: #5
Posted by: Mark
Fri Jul 25, 2014 7:29 AM
Dear Ms. Estrich,
As you well know, the so-called Innocence Project doesn't really mean these guys are innocent. The real problem as you well know is in re-trying them a second time after so many years have passed.
Witnesses have moved, forgot details, even died. Police have retired and evidence may have deteriorated and even got lost in the system.
So-called witnesses come forward either to recant testimony, or to say they were with the defendant on the day in question when in fact they were probably committing their own crime 10 miles away.
I'm not sure why the DA's of these counties are not making more of a fuss, and explaining exactly why they're not pursuing the case to the public. Of course having served 20+ years is a stiff sentence, and maybe the DA's are satisfied with that, but now the public thinks innocent people are serving time when that's just not the case.

Of course this is not to say no innocent person even in modern times has been convicted of a crime. It would be foolish to think that it hasn't happened, or couldn't happen. It's just that in the USA, the odds are so great against this happening, especially in a death penalty case as to be non-existent.

Still it gratifies me to see that it appears as a Liberal you support the Death Penalty for the really vicious murderers, as do most Americans including me. I'm surprised.

Nuff Said...Dennis
Comment: #6
Posted by: Dennis
Fri Jul 25, 2014 8:27 AM
If after due process a "perp" is found guilty of murder for which the punishment pursuant to applicable law is death, and any sentence of death is subsequently confirmed after appropriate appeal then put the "perp" down quickly, that day or the next at latest I care not how, and let God sort the rest out.

That the struggle of the left to rationalize its positions is for those of the left is an intolerable Sisyphean burden and indeed that liberalism is indeed a sickness of the mind is well illustrated by the manner in which progressives, to a man or woman or to all things between would happily and joyously put an innocent child in the womb down right up the moment before birth (and some like obama after birth) without a qualm and without any process ( hell they insist that it is a constitutional right so to do) but yet get all vexed and hot and bothered over the execution of some murdering low life piece of sh*t or the life of some useless smelt in a California river or over Caribou in Alaska that need no protection. Jeez ! These are definitely the lunatics that are charge of the asylum.
Comment: #7
Posted by: joseph wright
Fri Jul 25, 2014 10:22 AM
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