Earlier this week I noted the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment, Michael Meltsner's classic book detailing death penalty litigation in the 1960's and 1970's at the NAACP Legal Defense Fund (LDF). Better still, the Quid Pro Books edition has a new preface by the author.
I'm very happy that Michael Meltsner took the time to participate in a Q&A. He's a senior professor of law at Northeastern University School of Law in Boston, and its former dean.
Q. This is a classic book, and I'm really glad that it will now be widely available again. What was it like to revisit your original work with the passage of time and to write the new forward?
A. Much has happened since publication of the first edition in 1973, but to my surprise I realized we still live in a legal world governed by the tension between Furman and Gregg. My main reaction, however, was more personal than professional: I thought about the lawyers, secretaries and advocates with whom I worked closely, some of whom are no longer with us. An extraordinary group. I asked myself how did they find the energy and imagination to do what they did?
Q. It must have been incredibly frustrating to see the states' reaction to Furman, quickly resulting in new death penalty statutes. What was that like?
A. Yes frustrating it was. Defeat snatching victory just as we were getting used to it. (Like the Red Sox losing its nine game lead in September:)) But then the Furman victory was itself unexpected. We lived roller coaster lives those years.
Q. Now, a generation and nearly 1,300 executions later, it's increasingly clear that America's death penalty remains arbitrary and capricious, largely limited to the American South. Death sentences are dropping and one by one state legislatures are replacing capital punishment. What do you see for the future?
A. I see an unwilingness to use the death penalty for any substantial public purpose and an incapacity in a number jurisdictions to discard it. Think of trying to take away a child's pacifier! He no longer needs it but will fight like crazy to keep it around.
Q. At a symposium on the future of death penalty scholarship at the University of Albany, Hugo Adam Bedau started his keynote by reciting recent book titles on the death penalty - the point being that every year brings an increasing number of book focused on this failed experiment. For those who haven't read Cruel & Unusual and don't know its history, what makes it relevant today?
A. I'm told you can't practice in the field at a high level without understanding the road to Furman, but I agreed to a second edition because people I respect flattered me by saying the book was a great read as well as a primer on litigation strategy and tactics. I still teach a course on constitutional litigation that deals with strategy and tactics so I was an easy sell. BTW last year I was honored to have received an award in Hugo Bedau's name; his scholarship laid some of the essential building blocks for the Legal Defense Fund's approach.
Q. You've had a superlative career. What role did death penalty litigation play in shaping your life in the law?
A. I deal with this at length in my 2006 memoir, The Making of a Civil Rights Lawyer. In brief though, at a remarkably early age I had the opportunity to argue capital cases, one before the Supreme Court. Working with lawyers like Tony Amsterdam, Jack Greenberg and Jim Nabrit was my true legal education. But the deeper meaning, one that shaped a lot of my subsequent work, was an intimate knowledge of how dysfunctionally our society deals with violence
Q. What led you to start Quid Pro Books? Between your duties and research at Tulane Law and editing the Legal Profession Blog, it seems that you already have a reasonably full plate.
A. Last year, I figured that the Kindle and iPad meant a whole new life for classics in law & society that had gone out of print. Most nonfiction publishers did not seem eager to create ebooks, or at least priced them high to drive readers back to print books. All 50 of our ebooks or journals are $9.99 or less. All have affordable paperbacks, too, because there is still a need for their availability to, really, a different market. There was no shortage of great books that needed new editions, written by the best people in their fields . The project took off, and now brings out all-new books too, such as Lawrence Friedman's The Human Rights Culture. As to having time to do it despite blogging, I recommend to you a prodigious co-blogger. In my case Mike Frisch is a blogging machine, not me.
Q. Publishing has been undergoing a revolution in recent years. You touched on this, but how important is it to have e-editions along with hard copies of these works that have been out of print.
A. Extremely, even though there are many people who understandably prefer print editions. For others, Kindles and apps are nice. But for some people who need large print, or text-to-speech, or access to books instantly in remote places or other countries, ebooks are more than a convenience: they restore reading to people who lacked realistic access before. For out of print classics, in particular, the economics make more sense for ebooks--no warehousing, lower production costs, potential worldwide market. In the future the percentage of people who get their books in a digital format will only increase, of course, but we'll happily produce print editions as long as people read them.
Q. Any preview of future criminal justice titles we might expect to see?
A. Hmm. None scheduled for the short run. Some criminal law fiction is coming. But more traditionally, this spring we republished Jerome Skolnick's Justice Without Trial, with a new Foreword by Candace McCoy, and Stuart Scheingold's The Politics of Law and Order, with new Foreword by Malcolm Feeley. Both are very recognized titles in legal sociology and political science, respectively.
Q. Besides criminal justice topics, do you have any other books that may be of special interest to our Texas readers?
A. Yes, thanks, at least for those who also have dealings over our border into Louisiana, or are curious about civil law terms. It's a Louisiana Civil Law Dictionary. I also think some may be interested in a history of the Bracero guestworker program, Kitty Calavita's Inside the State. And as noted before, Lawrence Friedman of Stanford has a new book out on human rights.
Q. The legal community was an early and enthusiastic adopter of blogs, and the network of law professor blogs covers an entire spectrum of legal issues. The blogs certainly help to disseminate traditional scholarship, and enlarge the community for discussion, but they do more, as well. What lessons have you learned from editing the blog.
A. Other than the advice earlier of enlisting a co-editor who is committed to regular postings and knows how to dig up stories of interest, I learned that such stories and open questions -- on legal ethics, in the case of our blog -- lurk everywhere, but aren't well organized. State bar discipline reports, for many states, are not as accessible or open as you'd think. We find the ethics angles in ordinary news stories too.
Many thanks to Michael Meltsner and Alan Childress for taking the time to participate. Harry Truman often said, "The only thing new in the world is the history you don't know." Cruel & Unusual is a vital and foundational book, essential to really understand American states' application of the death penalty today.
Earlier coverage of the reissue of Cruel & Unusual begins at the link.