Rethinking the Power To Take a Life

America's approach to capital punishment changed in the 1970s. It's time for another look.

Let the Lord Sort Them: The Rise and Fall of the Death Penalty, by Maurice Chammah, Crow, 368 pages, $28

A gruesome coincidence has made Maurice Chammah's Let the Lord Sort Them: The Rise and Fall of the Death Penalty timely. In the final months of Donald Trump's presidency, shortly before this book was released, the Justice Department rushed through eight executions after a 17-year pause in use of the federal death penalty. The historic killing spree reignited a well-worn debate about capital punishment.

Meanwhile, President Joe Biden campaigned on eliminating the federal death penalty. Criminal justice advocates are now urging the White House to commute the death sentences of those remaining on federal death row. And in March, Virginia Gov. Ralph Northam (D) signed legislation to end capital punishment in the state that has carried out more executions than any other in U.S. history.

Chammah—a reporter at The Marshall Project, a nonprofit newsroom dedicated to criminal justice coverage—arrives just in time to explain how we got here.

Let the Lord Sort Them opens with the U.S. Supreme Court's momentous 1972 decision in Furman v. Georgia, which struck down every state's death penalty scheme as unconstitutionally arbitrary and discriminatory. This sent lawmakers in 37 states scrambling to salvage capital punishment, whose popularity rose in public opinion polls by nearly 10 points after the ruling.

Chammah focuses largely on Texas. This is a logical choice: The Lone Star State is the geographic and cultural center of the death penalty in America.

In the wake of Furman, Texas instituted an unusual system. When states retooled their death penalties to placate the Supreme Court, they tended to choose one of two basic schemes. One, pursued by North Carolina and Louisiana, instituted mandatory death sentences for first-degree murder. If everyone is executed, they reasoned, that would remove any whiff of bias. Equal justice under the law, indeed. Other states, such as Florida and Georgia, required juries to consider aggravating and mitigating factors at a separate sentencing stage for capital trials. Did the killers show remorse? Were they mentally competent? What was their upbringing?

Texas attempted to split the difference. The death penalty would be mandatory for certain murders if a jury answered yes to three questions at sentencing: Was the murder unprovoked? Was it deliberate? And was there a "probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"?

When the Supreme Court heard the inevitable challenges to these various state laws in 1976, Anthony Amsterdam, the attorney who had successfully argued against capital punishment in Furman, insisted that none of the new death penalty plans were constitutional—not because they were too severe but because they all involved too much human decision making and were therefore susceptible to bias. Opposing Amsterdam, U.S. Solicitor General Robert Bork, arguing for the federal government, said that an inflexible system that allowed for no human discretion could be just as monstrous as, if not more monstrous than, one that indulged prejudice. "The only system that would meet [Amsterdam's] objections would be one that was so rigid and automatic and insensitive that it would be morally reprehensible," Bork said during oral arguments.

The solicitor general carried the day, and the Supreme Court upheld the Florida and Georgia death penalty schemes while striking down the mandatory schemes in North Carolina and Lousiana. Juries, Justice Potter Stewart wrote, should be able to consider all factors "stemming from the diverse frailties of humankind."

The Court also upheld Texas' death penalty, paving a way for the state to carry out the world's first execution by lethal injection in 1982. Fifteen other states would send officials to Huntsville, the site of the state's execution chamber, to observe and learn from Texas' new procedures.

With the death penalty rehabilitated, the battle over capital punishment became the legal equivalent of trench warfare. Anti-death-penalty groups shifted to improving trial defense, flooding the zone with post-conviction appeals, and chipping away at issues such as racial discrimination, low bars for mental competency, and junk science in courtrooms.

Let the Lord Sort Them follows people through those trenches, from a dogged appeals attorney to a line prosecutor who puts a man on death row (and receives a syringe-shaped novelty pen from her boss as congratulations). The prosecutor later becomes a Texas appellate judge critical of the state's death penalty -practices.

The book also shows us the juries, the judges, the death row inmates themselves, the chaplains, the tie-down teams that strap a condemned inmate into the gurney, and the families of both the condemned and the victims. Although it is ostensibly a legal history, Chammah tells that story through narrative reporting that focuses on individuals, showing the profound effect a death sentence has on everyone who makes up the cogs in what the late Supreme Court Justice Harry Blackmun called the "machinery of death."

Although his book is unflinching in its description of bias, corruption, and error in the criminal justice system, Chammah does not gloss over the crimes behind the cases or minimize the anguish those crimes caused. It's a full, messy portrait.

Chammah fills the book with illuminating and memorable details. In one case, an attorney representing a man facing the death penalty fell asleep numerous times during the trial. When a reporter asked the judge why he allowed the trial to continue, Chammah writes, "the judge said the Constitution guaranteed you the right to a lawyer, but not necessarily one who was awake." In another case, a prosecutor argued to the jury, without any objection raised from the defense counsel, that the defendant deserved a death sentence partly because he was gay; spending his life in a prison filled with other men, he declared, wouldn't be punishment enough.

The system may appear to go out of its way to protect the rights of people facing the death penalty, but cases like these show that defendants can be at a severe disadvantage: poorly served by incompetent defense lawyers and hamstrung by prosecutors who are sometimes not above lying and cheating to secure a conviction. The three questions Texas juries were supposed to gravely consider before returning a death sentence, especially the "future danger" question, seemed designed to be answered "yes." (Texas prosecutors employed a psychiatric expert nicknamed "Dr. Death" to help them argue future dangerousness. In 1994, his testimony had contributed to roughly a third of the state's death row population.) Even when inmates got a post-conviction appeals attorney who identified prosecutor misconduct or trial errors, they were often denied relief by credulous judges who ruled that the mistakes were harmless. Chammah shows us one defense lawyer, working on an 11th-hour appeal, who uncovered a written deathbed confession from another man that could clear her client. She watched him die on a gurney anyway after a court denied her emergency motion to stay the execution.

The Texas Board of Pardons and Paroles and the governor were supposed to provide another avenue for mercy, but the board almost never recommended clemency. Members skimmed applications and voted by fax. Governors were more than happy to defer to the board's wisdom.

Texas' wave of executions began to recede in the late 1990s, for several reasons. The rise of DNA testing made it undeniable that innocent people had been sentenced to death. (Since Furman, 185 people have been exonerated from death rows across the country.) Meanwhile, the exorbitant costs of conducting capital trials became ruinous for all but the biggest counties in Texas. Chammah also attributes the decline to the simultaneous rise of 24-hour cable news, which turned events like the execution of Karla Faye Tucker in 1998 into major national stories and caused political headaches for governors such as George W. Bush.

The biggest squeeze in the remaining death penalty states has come not from courts but from supply chains. The European Union restricted the export of sodium thiopental, the first drug in the three-drug cocktail used for lethal injections, to the United States, and the only domestic supplier stopped producing it. Several states have turned to lightly regulated compounding pharmacies, shady overseas suppliers, and secretive cash transactions to try to keep their death chambers active.

Rare though it has become, the death penalty commands a big hold on the public imagination. It is the most dramatic display of the state's power over an individual, and the question of whether state-sanctioned killing is acceptable cuts to the core of one's worldview.