The crime of Wyatt Matthews

It is a rare enough for lawyers, let alone laymen, to reflect on what our Constitution actually does have to say about capital punishment, or judicially imposed punishment of any kind: "No person shall be . . . deprived of life, liberty, or property without due process of law . . . Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

It has been observed that Leon Czolgosz went to his death 49 days after his victim, President William McKinley, and no one has ever seriously contended that he was denied "due process of law." The Framers of the Constitution, of course, had no intention of abolishing the death penalty with their reference to "cruel and unusual punishments," and the Supreme Court itself, until 1972, addressed only the method of execution and the appropriateness of death for a specific crime when called upon to interpret the phrase. Since 1976, the death penalty has again been adjudged lawful in most states under statutes that have passed the constitutional muster mandated in Furman. Nonetheless, we are all familiar with the not infrequent spectable of a condemned prisoner being put to death only after spending his final weeks firing a light brigade of pro bono ambulance chasers and insisting that he prefers death to life imprisonment; or after truly heroic efforts by a state attorney general who has spend days flying around the country opposing spurious last-minute appeals in various forums. Justice Powell, speaking before the 11th Circuit Conference, provided an excellent example of that phenomenon:

The most recent example is the Evans case from Alabama. Evans was found guilty and sentenced to die in 1977. No one seriously suggested his innocence or that under existing law capital punishment was not a merited sentence. Resourceful counsel, six months after federal habeas seemed to have been exhausted, sought a stay of execution from me as circuit justice. Filing of the application was delayed for two months after Evans's motion for a new sentencing hearing was denied. Filed late on April 19, it reached my chambers on the morning of the 20th, forty hours before scheduled execution time.

With the concurrence of six other members of the Court, I denied the application of 5:45 P.M. on April 21. Approximately twenty minutes later, and with no notice to us, the same counsel filed a new petition for a writ of habeas corpus in the District Court for the Sourthern District of Alabama. The petition raised numerous grounds resolved in the prior habeas proceedings and also purported to identify "new" grounds. This belated filing occurred less than seven hours before scheduled execution time. After consideration by all nine of us, we granted the safe's application to dissolve and vacate the stay. . . .

Abuse of process, indeed. But why does it happen? Why is it tolerated? And why does it, almost invariably, word? The answer is not primarily based in law, for the imposition of death is, under many circumstances, lawful; the statutes that authorize it and the judicial decisions interpreting them are, if not crystalline in their clarity, at least not hopelessly opaque. The respectable intellectual case based in law, logic, precedent, or morality for the abolition of the death penalty has yet to be made; the best its opponents can muster is sqeamishness and pity lacquered over with learned argument. And no one who examines even a random sampling of the crimes committed by those currently on death row can have any conscientious doubts that the imposition of death is appropriate for these offenses; we no longer adjudge death for garden-variety rapists, heat-of-passion killers, or even most premeditated murderers. The death penalty has long been adjudged only for the most savage crimes.