4.2.12 WC: 191694
Several state courts, where rape by black men against white women were routinely punished by death, went out of their way to announce their rejection of the principal inherent in the dissenting opinion. This is what the Georgia Supreme Court said:
With all due respect to the dissenting Justices we would question the judicial right of any American judge to construe the American Constitution contrary to its apparent meaning, the American history of the clause, and its construction by American courts, simply because the numerous nations and States have abandoned capital punishment for rape. First we believe the history of no nation will show the high values of woman’s virtue and purity that America has shown. We would regret to see the day when this freedom loving country would lower our respect for womanhood or lessen her legal protection for no better reason than that many or even all other countries have done so. She is entitled to every legal protection of her body, her decency, her purity and good name.
The decision did not mention that Georgia, at that time, had one of the worst records in the nation with regard to women’s rights.
There was scholarly criticism as well. In the Harvard Law Review, Professor Herbert Packer of Stanford wrote:
If one may venture a guess, what Justice Goldberg may really be troubled about is not the death penalty for rape but the death penalty. The problem
may not be one of proportionality but of mode of punishment, the
problem that concerned the framers of the eighth amendment and
to which its provisions still seem most relevant. The Supreme Court
is obviously not about to declare that the death penalty simpliciter is
so cruel and unusual as to be constitutionally intolerable. Other social forces will have to work us closer than we are now to the point
at which a judicial coup de grace becomes more than mere fiat. Meanwhile, there may well be legitimate devices for judicial control of
the administration of the death penalty... .[but]
the device proposed by Justice Goldberg is not
one of them.
These were the short-term reactions. Far more important, however, was the long-term reaction of the bar, especially the American Civil Liberties Union and the NAACP, which combined forces to establish a death-penalty litigation project designed to take up the challenge of the dissenting opinion in Rudolph. The history of this project has been recounted brilliantly by Professor Michael Meltsner in his book Cruel and Unusual, and I could not possibly improve upon it here. But the results achieved were dramatic. Meltsner and the other members of the Legal Defense Fund, a group that included a number of talented and committed lawyers, litigated hundreds of cases on behalf of defendants sentenced to death and, in many of these cases, succeeded in holding the executioner at bay until the Supreme Court was ready to consider the constitutionality of the death penalty. I consulted on a number of these case, lending insights from my experience as the law clerk who had drafted the Rudolph opinion.
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