Cut to the Bone(64)

“Best I’ve heard in years,” Rehnquist agreed. “Death penalty cases stir such passion. Mr. Furman’s attorney made some impressive arguments for reversing his client’s death sentence.”

“Glad to hear you admit it, Bill. He’s got plenty of cause,” Stewart said, nodding as William O. Douglas hurried by, juggling legal pads and coffee.

Rehnquist shook his head. He’d been sworn in only ten days ago, but bowed to no one in parsing the Constitution. “William Henry Furman killed an innocent husband and father.”

“Accidentally.”

“He was burglarizing the man’s home, Potter. In the middle of the night.”

“It was still an accident. Homeowner hears a noise. Thinks it’s their son sleepwalking again. Walks out of the bedroom to see what’s what. Furman panics, tries to run. He trips, his gun goes off, homeowner dies,” Stewart recited. “Because Furman lives in Georgia, he’s sentenced to the electric chair.”

“Because the Georgia legislature decided execution fit his crime,” Rehnquist said. “Centuries of Anglo-American legal tradition support capital punishment, and you know it.”

“What I know, Bill, is that societal standards evolve,” Stewart said. “We used to burn witches, flog sailors, and send our poor to debtors’ prisons. We do none of that anymore, because our notions of morality have changed. Become more sophisticated. It’s time to declare capital punishment incompatible with 1970s America.”

“I agree,” Rehnquist said.

“You do?”

“Sure. Views do change over time. But not on capital punishment.”

“I see.”

“I’m sorry, Potter, but you don’t,” Rehnquist said. “Americans are overwhelmingly in favor of putting killers to death. That gives the Georgia legislature - all legislatures - the moral and constitutional right to impose that penalty.”

“Not if we rule otherwise.”

“It’s not our place to substitute our judgment for theirs.”

“We have to, Bill,” Stewart said. “That killing was accidental. If Furman did the exact same thing in Oregon, he’d get a manslaughter conviction and fifteen years. In Rhode Island, he’d get life. Arizona, death. California, thirty years. Texas-”

“They’d hang the varmint by sundown.”

They both laughed.

“All kidding aside, capital punishment is a thicket of double standards,” Stewart said. “There’s no rhyme or reason to how it’s applied, just throw your dart and see where it sticks. States impose it so capriciously, so utterly contrary to the punishment fitting the crime, that it’s-”

“Let me guess,” Rehnquist said. “Cruel and unusual.”

“In the same way that being struck by lightning is cruel and unusual,” Stewart said, patting Rehnquist’s arm. “Because dying from it depends not on truth, justice, or facts, but on where you’re standing.”

“Very eloquent. Do I hear the opening line of an opinion to reverse Furman’s death sentence?”

Stewart smiled. “I hate to waste perfectly good prose.”

“Take it easy, Wayne,” the state’s attorney said, offering his bulldog assistant a tumbler of Wild Turkey. “You’ll give yourself a stroke.”

Covington drained it in one gulp. Felt the burn all the way down. It was nothing compared with his outrage.

“Furman killed an innocent man,” he fumed. “In the man’s own house! Georgia properly sentenced him. How can the Supremes rule pulling the switch is unconstitutional?”

“That’s not going to happen,” the state’s attorney said, refilling the tumbler.

Covington jumped to his feet. Until reading the summaries of today’s oral arguments before the high court, he’d never dreamt his long-awaited execution of Earl Monroe might be commuted to mere prison. His boss said, “No way.” But if five of the nine justices bought Furman’s quixotic argument that death was too cruel and unusual a punishment for causing death, Monroe could slip the chair as well.

“Quit pacing, goddammit,” the state’s attorney ordered. “You’re making me nervous.”

Covington sat, slumped, sipped, sighed.

“I’m telling you not to worry,” his boss continued. “Monroe’s execution is June 29. Five months from now. Much too quick for the Supremes to make a decision that far-reaching.”

“Well, that’s true,” Covington said, rubbing the pocket comb he always carried.

“Mm-hm. By the time they do get around to deciding, Earl’s body lies a-moldering in the grave. And this chair is yours.” He smiled. “Just remember the old proverb.”