I spent my first year out of law school as a law clerk for Paul C. Reardon, a justice on the Massachusetts Supreme Judicial Court. We had many interesting cases, and I helped Judge Reardon draft opinions in the cases that the Chief Justice assigned to him.

One such case was Commonwealth v. Ladetto, a murder case in which Peter Ladetto was convicted of killing a police officer while attempting to commit a robbery in 1963. Under Massachusetts law at that time, first degree murder carried an automatic death sentence unless the jury, as part of its verdict, recommended life imprisonment.

I had read “Reflections on the Guillotine,” a 1957 essay by the French writer, Albert Camus, which convinced me that the death penalty was a bad idea, a view I have held ever since. I probably approached my work in the case – reviewing the record, legal research, drafting an opinion – with the hope of finding a basis on which Ladetto might avoid execution.

And I found one, or at least thought I did. I wrote a memorandum arguing that it was unconstitutional to allow a single holdout juror to send a person convicted of murder to the electric chair. Judge Reardon showed my memo to “the Chief,” but that’s as far as it went. The Court upheld Ladetto’s conviction and death sentence. That was in 1965.

Some years later the Supreme Judicial Court declared the death penalty unconstitutional (under the state constitution), and Ladetto managed to live out his life in prison, where he died a few years ago, more than 50 years after killing Officer Callahan.

Meanwhile, American law has repeatedly confronted the issue of the death penalty, with a hodgepodge of rulings that have created little clarity and widespread uncertainty. In 1972, the Supreme Court decided in Furman v. Georgia that the death penalty laws of several states were so arbitrary and discriminatory that they violated the Eight Amendment protection against inflicting cruel and unusual punishment. The result was a national death penalty moratorium, which only lasted for a few years.

In 1976 the Court held, in Gregg v. Georgia, that the death penalty was constitutional so long as state law included objective criteria for the jury to consider, for example a history of felonies, a particularly vicious crime, or killing a police officer, and so long as the jury considered the defendant’s background, meaning mitigating or aggravating factors. The latter is what produced the current system of a separate sentencing hearing after a guilty finding. (I should have suggested that approach in my Ladetto memorandum.)

This question goes back to debates over the bill of rights in 1789. Interestingly, New Hampshire’s Samuel Livermore argued during the First Congress that “it is sometimes necessary to hang a man,” even if doing so was “cruel.” Beginning in the late 1970s, the Court has chipped away at capital punishment in certain types of cases.  Thus it may not be imposed in cases of rape, or if the defendant is insane, mentally retarded, or under age 18, or if the method of execution inflicts excessive pain.