Earlier this year, in the case of Roper v. Simmons, the United States Supreme Court addressed whether execution of a 16 or 17 year-old is cruel and unusual punishment and thus barred by the eighth amendment.
The Court’s decision – that in today’s society, it is cruel and unusual punishment to execute a 16 or 17 year-old, no matter how heinous their murderous activity may have been – reminded me of the exact moment when I knew for the first time I wanted to be a lawyer. But not just a lawyer – an advocate, a trial lawyer, an appellate lawyer.
It was 1960, and apart from the campaign for the White House between Richard Nixon and John F. Kennedy, there was one story that dominated the national news that spring – the case of Caryl Chessman.
In 1948, the year I was born, a 25 year-old man named Caryl Chessman had been arrested in Los Angeles for robbing and raping a young woman. He was convicted of 17 counts, including kidnapping. The jury found that one of the kidnapping counts including bodily harm to the victim – namely, rape – and under California law at the time, the sentence for kidnapping with bodily harm was either life in prison or the death sentence. In 1960 in the United States, there was no eighth amendment proscription against capital punishment for a non-capital offense.
And so Caryl Chessman was sentenced to death.
He sat on death row at San Quentin penitentiary for 12 years. During that time he wrote four books pleading for mercy, including a book titled Cell 2455, Death Row, which became a best seller, and was translated into many foreign languages.
Of course he protested his innocence, but his strongest argument – and the one that captured the attention of the entire world – was the inherent disproportionateness – really, the inhumanity – of executing someone for committing a crime in which no one had been killed, much less murdered.
Throughout the world there was general revulsion at the concept of the death penalty for any crime, let alone for a crime that did not result in someone’s death. And so there was an outpouring of support for Caryl Chessman, both from abroad within the United States. Editorials were written, letters and phone calls poured in, and Chessman’s death sentence was stayed eight times. But ultimately, his appeals were exhausted.
Chessman was executed on May 2, 1960.
The governor of California who signed Chessman’s death warrant was Edmund G. Brown (father of subsequent governor Jerry Brown), who was personally opposed to the death penalty, but was constrained by the law.
As a youngster, and without any comprehension of the full breadth of arguments for and against capital punishment, I knew that the idea of executing someone for committing rape – as horrible a crime as that is – was barbaric. I could not understand how, in this great country, such inhumanity could be codified into our legal system. I followed the Chessman story compulsively.
In one of the television reports on one of his stays of execution, the television reporter mentioned Clarence Darrow, whom I’d never heard of, and that he was a great opponent of capital punishment. I made a mental note and went to the library and took out three or four books on Darrow, including his autobiography, in which he wrote about his famous cases. Many of these were devoted to saving his clients from imposition of the death penalty.
His most famous death penalty case was the Leopold and Loeb trial in Chicago, in which he defended two wealthy college students who had decided to commit the perfect crime, and had murdered the cousin of one of them. Darrow did not challenge his clients’ guilt – his entire effort was focused on sparing them from the death penalty.
Darrow’s closing argument emphasized the inhumanity of the death penalty. He concluded his closing argument with a poem by the eleventh century Persian poet Omar Khayyamm titled “So I Be Written in the Book of Love.” It is a very short poem, only four lines:
So I be written in the book of love,
I do not care about that book above.
Erase my name, or write it as you will,
So I be written in the book of love.
The judge sentenced Leopold and Loeb to life in prison.
When I read Darrow’s closing argument, and connected it to the statutory injustice wrought in the case of Caryl Chessman, I realized that the power to change the law, and the outcome of the law, to make the results right and fair for all of us who are subject to the law, lies in the hands of trial lawyers.
And that was the moment when I knew I wanted to be a litigator, a decision from which I have never wavered.