Author looks at 1972 Supreme Court ruling

Web Posted: 08/05/2006 02:53 PM CDT

David R. Dow
Special to the Express-News

Back From the Dead:
One Woman’s Search for the Men Who Walked off America’s Death Row
By Joan M. Cheever

Wiley, $24.95

In 1972, the death penalty in America briefly disappeared. By a vote of five to four, in a series of nine separate opinions totaling nearly 250 pages, the Supreme Court ruled in the case of Furman vs. Georgia that capital punishment constitutes cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution.

Four years later, in another case from Georgia (Gregg v. Georgia), the court reversed itself, reinstating the death penalty, and the modern era of executions began when the state of Utah executed Gary Gilmore by firing squad in 1977. But the court’s reversal did not affect the fortunes of the 587 men and two women who had been on Death Row that day in 1972 when the death penalty died its brief death.

Joan M. Cheever graduated from St. Mary’s University School of Law. She served as a judicial law clerk and then went on to a distinguished career as a legal journalist, which has included being the managing editor of the National Law Journal. Her one and only client was Walter Williams, death row inmate No. 999722.

It may come as a surprise that a lawyer with as little experience as Cheever could be the principal lawyer representing a death-row inmate in his appeals, but in the late 1980s and early 1990s, hundreds of death-row inmates around the country, including hundreds in Texas, had no lawyers.

Consequently, when judges and death-penalty advocacy groups began looking for lawyers to represent these prisoners, experience counted less than willingness and enthusiasm. Cheever had those qualities in spades. She ended up representing Williams for nine years, until he became, on Oct. 5, 1994, the 82nd inmate executed in Texas since capital punishment was reinstated in America.

After Williams’ execution, Cheever thought about the men who had been on death row the day executions were halted in 1972. In her assessment, they had won the lottery, but what happened to them. The result is her book, “Back from the Dead.”

It is an extraordinary report, in two quite different respects, one having to do with who went back to prison, the other with the attitude of those who didn’t.

Of the lottery winners, 322 had been released from prison by the time Cheever finished her book. Of those 322, about one-third — 111 in all — ended up either back in prison or eligible to be returned to prison. Of the 111, 33 men committed trivial violations of their probation (for example, accumulating unpaid parking tickets, or being at an establishment where alcohol was sold). Of the remaining 78, more than half (42) committed nonviolent crimes, like robbery. The remaining 36 went back to prison for violent offenses, in which 29 committed armed robbery or aggravated assault. Of the remaining seven, two were convicted of attempted murder, two for manslaughter and three for murder.

Most people, I suspect, tend to think murderers will surely murder again. Cheever’s story demonstrates the contrary. It shows the remorseful but well-adjusted members of what Cheever calls “the Class of ‘72.”

Many of them had difficulties holding jobs, maintaining relationships or avoiding substance abuse. But Cheever identifies scores of success stories, and by examining their lives, she concludes that education and human relationships — with family, friends, fellow churchgoers — were the decisive factors in helping convicted murderers stay out of prison and become socially productive.

There is, in this report, an implicit rebuke of our contemporary approach to punishment, which has largely abandoned the idea of rehabilitation, and replaced it with the idea that we should give up on tens of thousands of inmates and just make sure that we keep them incarcerated in an institution from which they cannot escape.

I admired this book very much, although it did feel a little bloated to me. I learned more than I really wanted to about what Cheever ate for breakfast at a diner in South Carolina or for dinner at a McDonald’s in Texas. I was not terribly interested in the quality of the motel rooms where she slept, or about how nervous she was in the presence of some of the murderers she tracked down to interview. She goes on for too long about the stressfulness of representing a murderer, the difficulty of juggling a demanding job with a new marriage and a new baby, and her mother’s incomprehension of Cheever’s determination to pursue the story she was pursuing.
Perhaps others will be more eager to learn these details, but in any case, those prolonged asides that revolve around Cheever’s life are not what the book is about.

It is instead about a critically important fact that is all but lost in the contemporary death penalty debate: that most residents of death row are capable of reform and are capable of living law-abiding lives outside of prison or nonviolent lives inside an institution.

Cheever’s writing is at times overwrought, yet what this book nevertheless proves, with the cold, hard, unemotional data of laboratory science, is that every year, we as a society, if we wanted to, could salvage 40 or 50 people, instead of executing them.

David R. Dow is the University Distinguished Professor at the University of Houston Law Center. He is the author of “Executed on a Technicality: Lethal Injustice on America’s Death Row.”
San Antonio Express-News publish date Aug. 6, 2006

Online at: http://www.mysanantonio.com/entertainment/books/stories/
MYSA080606.9P.book.cheever.rev.2de0fe.html