Furman's Wake In The Land Of Bean and Cod

• Date: 01 April 1973
• Published date: 01 April 1973
• DOI: 10.1177/003288557305300102
• Subject Matter: Articles

Furman’s Wake In The Land Of Bean and Cod
By

Hugo Adam Bedau*
In Furman v. Georgia, the United States Supreme Court did
not abolish capital punishment in this country. It did not even di-
rectly invalidate any state or federal death penalty statutes. It did
hold in its ~er curiam decision that in the case of William Furman
(and two others, Lucius Jackson and Elmer Branch) the death sen-
tence was &dquo;cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments&dquo;and thus the &dquo;judgment in each case&dquo;
was reversed and &dquo;the cases remanded for further proceedings.&dquo;1
The &dquo;further proceedings&dquo; consisted solely of resentencing to life
imprisonment. Described in the narrowest possible way, this was all
that was settled in the historic Supreme Court ruling on capital
punishment of June 29, 1972.
Perhaps it is possible, nevertheless, to argue that in a looser
sense the Supreme Court really did &dquo;abolish&dquo; the death penalty
after all. To see whether this is true, it is necessary to review how
each state in the nation has responded in the months since Furtizan.
This is a lengthly and complex story to tell; it is also far from com-
pleted. Only a small portion of it could possibly be undertaken
here. I,et us examine how one state - the Commonwealth of Mass-
achusetts - responded to the Furman decision in thc eighteen
months between July, 1972, and January, 1974.
As of the date when the decision in Furman was announced,
twenty-four men were in the Walpole Prison awaiting execution of
the death sentence.2 Although there have been no executions in
Massachusettes since 1947, all efforts to abolish the death penalty
through legislative repeal have been defeated. Annually, for decades,
abolition bills with differing provisions have been filed, discussed at
public hearings, and usually left to die in committee. From time im-
memorial, first-degree murder (including criminal homicide which
is &dquo;premeditated,&dquo; or which involves &dquo;extreme atrocity or cruelty,&dquo;
or which is a felony-murder) has carried the death pcnalty.3 As re-
cently as 1968, an advisory referendum showed that voters were in
favor of retaining capital punishment by a vote of 1,159,348 to
730,649 (458,008 voters left this ballot item unmarked).4 Apart
from an important legislative decision in 1951, to abolish the tra-
ditional mandatory death penalty (save for murder in the course of
rape or attempted rape) and replace it with jury sentencing discre-
tion,5 and relatively minor administrative changes such as the joint
resolution of the legislature in 1972, to end &dquo;death row&dquo; in Walpole
Prison (thereby allowing prisoners under death sentence to be treat-
ed more or less like other felony convicts),6 no important reforms
had occured in Massachusettes law effecting the death penalty for
many years.
* Department of Philosophy, Tufts University.
-4-

---

Immediate reactions to the Furman dcci~I&dquo;n varicd. Onc
man, a.dcath scntcncc inmate at Watpole, said, &dquo;I’d rather die in the
chair than live in prison for the rest of my life for a crime I didn’t
commit.&dquo;7 The Chief Justice of the Superior Court, Waltcr H. Mc-
Laughlin, prcdictcd an avalanchc of violent crimcs and a demoral-
izing cffcct on law enforcement agencies. Hc also urged amcnd-
ments to the U.S. Constitution to reestablish thc death pcnalty,&dquo;8
Mrs. Sara Ehrmann, nationally known opponent of thc dcath penal-
ty in Massachuscttes since thc 1920’s and a former prcsidcnt of the
Massachusctts Council to Abolish thc 1)cath Penalty, declare, &dquo;I
feel victorious. I appreciate every once of success. I t’eel triumph-
ant. Yes, I fcel triumphant.&dquo;9
Another Bostonian, whose daul;htcr was a victim in 1944
of kidnapping and murders, complained, &dquo;What’s going to stop all
thosc pcoplc now? Criminals know now thcy aren’t going to get thc
electric chair. What’s to stop them from going around killing?&dquo;’ 0
To judge from thc ncwspapcr rcports in Boston’s two leading
dailies, no particular attitudc in favor of or opposed to thc Furman
ruling sccmcd to dominate the public mood. Mcanwhilc, thc two
dozen mcn undcr dcath scntcncc - ninc of whom wcrc nonwhitc -
awaited the effect upon thcm of thc Supreme Court’s dccision.
At the timc thc Suprcmc Court announced thc Furman dc-
cision, it also ordered in a series of/?6’r CM~a~ dccisions rcscntcnc-
ing in somc 1 I8 othcr cases from twenty-six different statcs. ()nc
of thc morc important of these decisions was Stewart v. tllassachu-
sctts. 1 1 As a direct rcsult of Furman, therefore, John S. Stcwart’s
dcath sentence was summarily reversed and the Massachusetts
courts were ordered to rcscntcncc him consistent with that ruling.
Also rcverscd at thc same timc were three othcr Massachusctts
dcath sentences which were pending with thc Court, including the
death sentence of John E. Kerrigan, awaiting execution at Walpole
since September 23, 1961,12 - nearly cloven ycars, making him the
holdcr of thc dubious record of most time under sentence of death
in the history of Massachusetts. Kerrigan and the othcr two were
duly resentenced to life imprisonment.
What about the remaining twenty, however? Upon inspect.
ion of the statutes under which they were convictc I, it would have
appeared that all would eventually bc able to Cl;IIJl1 a reversal off
death sentence, on thc grounds of Furman and Steu art - all, that is,
except two. Mr. Justice Stewart, in his concurring opinion in
Furman, had explicitly singlcd out thc Ylassachusctts mandatory
death pcnalty for fclony murdcr-rape as a death penalty statute
5-

---

not touched by the holding in Furman.. 13 At the time Furman was
handed down, two persons - both black - were under death sentence
in Walpole Prison for this crime. Their prospects were less cheering.
They were to be among the few across the nation out of the more
than six hundred whom
Furrnan by itself would not suffice to spare
from continuation under death sentence.
It is perhaps most convenient to proceed to review the im-
pact of Furman in Massachusetts by taking up in turn how each of
the three branches of state government responded. Because the Mass-
achusettes courts were the first to react, let us examine their re-
sponse first. Since the last noteworthy event during the period under
examination was the gubernatorial veto of pending death penalty
legislation, we shall conclude with that part of the storv. Between
the judiciary and the executive lies the legislature; how it reacted to
Furman forms the centerpiece of this story, in more than one way.
The exact application of Furman to all the death sentence
convicts in Massachusetts not mentioned in the per curiam holding
in Stewart did not take place until a year later, on July 24, 1973. On
that date, in the case of Commonwealth v. LeBlanc the Massachu-
settes Supreme Judicial Court declared in a unanimous opinion that
all pre-Furnzan death sentences in Massachusetts must be vacated,
and resentenced consistent with Furman. In addition, the Mas-
achusetts statute governing capital punishment was in effect
deemed unlawful due to its discretionary provisions. Writing for the
Massachusetts Court, Justice Kaplan declared, &dquo;In the light of the
Furman case the Commonwealth agrees that the defendant’s present
(death) sentence, which has been stayed, may not remain. The de-
fendant is entitled to be resentenced to life imprisonment.&dquo;14
The LaBlanc ruling is...