Abolition and backlash.

• Author: Dagan, David

A Wild Justice: The Death and Resurrection of Capital Punishment in America

by Evan J. Mandery

W. W. Norton & Co., 544 pp.

Efforts to ban capital punishment are growing. But keep this in mind: the last time the Supreme Court tried to end the death penalty, we got more executions.

Not too long ago it was difficult to find a politician in America who would publicly oppose capital punishment. Today, abolition is ascendant. Six states have scrubbed the death penalty from their books in the last decade--most recently Maryland, where governor and presidential aspirant Martin O'Malley signed repeal legislation last year.

The Maryland repeal was a victory for the Baltimore-based NAACP, which had lobbied hard for the measure. The civil rights organization is also promoting abolition in other states, and it has declared an audacious endgame. Once twenty-six states outlaw executions, the NAACP says, it will ask the U.S. Supreme Court to invalidate the death penalty nationwide by declaring it a "cruel and unusual punishment" under the Eighth Amendment.

This may seem a quixotic quest, but both the NAACP and the Supreme Court have done it before. The justices shocked the nation by declaring executions "cruel and unusual" in the 1972 case of Furman v. Georgia. The decision was the product of a decade-long litigation campaign led by the Legal Defense Fund (LDF), a public interest law firm affiliated with the NAACP. At the time, Furman was widely interpreted as the end of capital punishment in America.

But the abolitionist triumph was short-lived. Furman became an outlet for all the anger the Supreme Court had prompted with its decisions on civil rights, criminal cases, and--soon after--abortion. Riding the wave of outrage, state politicians rewrote their death penalty statutes and dared the Court to invalidate them again. In 1976, in Gregg v. Georgia, the justices gave the green light for executions to resume, setting off a new spree of state killing in America.

How did the justices reach their unexpected and radical decision in Furman? And, having crossed the Rubicon, why did they reverse course four years later? Evan J. Mandery, a former capital defense attorney and a professor at New York's John Jay College of Criminal Justice, answers these questions in his new book, A Wild Justice: The Death and Resurrection of Capital Punishment in America. As Mandery vividly shows, litigating the death penalty is like riding a bull. You can't tame it--so just hang on tight and prepare to be thrown.

Mandery draws his title from a quote by Francis Bacon, who declared in 1625, "Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out." The difficulty of this weeding-out is the central drama of the story. Many government decisions have profound moral dimensions, but they are seldom as stark as with the death penalty. As Justice Potter Stewart wrote in Furman, "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind."

There was another problem with capital punishment that the Supreme Court was loath to...