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April 01, 2007

Human Rights Hero: Anthony G. Amsterdam

by Ronald J. Tabak

Anthony G. Amsterdam would be a Human Rights Hero even if he had never done anything about capital punishment. His work on behalf of civil rights, journalistic freedom, international human rights, and in helping to “invent” clinical legal education, would suffice.

But this issue of Human Rights, devoted to capital punishment, is an especially appropriate place to recognize Professor Amsterdam for his preeminent work over the last four decades, both in leading and shaping litigation efforts and in calling attention to the fundamental lack of due process in this country’s implementation of capital punishment.

Amsterdam is the lawyer most responsible for the litigation strategy that resulted in the United States being free from executions from 1967 to 1977. The high point of these efforts was his victory in Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court case that had the effect of overturning all existing death sentences in this country in 1972.

After the Court upheld in 1976 some new death penalty statutes enacted in Furman’s wake , most notably in Gregg v. Georgia, 428 U.S. 153 (1976), Amsterdam—who had argued Furman, Gregg, and many other capital cases—remained extremely active behind the scenes. In the ensuing three decades, he has helped formulate litigation strategies and has guided lawyers appearing in death penalty cases before the Supreme Court and other courts around the country to shape their briefs and oral arguments.

Just a few of the huge number of outstanding lawyers with whom he has worked are Sandra Babcock, John Blume, Jack Boger, Michele Brace, Stephen Bright, Richard Burr, James Ellis, Deborah Fins, Ruth Friedman, Henderson Hill, George Kendall, James Marcus, James Liebman, Michael Laurence, Mark Olive, Rob Owen, Bryan Stevenson, Christina Swarns, and Denise Young. Amsterdam’s mentees have forced the Supreme Court to focus on such crucial issues as pervasive ineffective assistance of counsel, systemic racial disparities in capital cases, and the imposition of the death penalty on juveniles and on people with mental retardation or severe mental illness.

Unfortunately, the Court has handled many of these issues in a manner so unfair as to cause the American Bar Association (ABA) to call for a moratorium on executions. Amsterdam has played a leading role in calling attention to these egregious decisions. In 1987, for example, in a Human Rights article entitled “In Favorem Mortis,” he detailed how the Court increasingly was devising stratagems to avoid granting relief in cases presenting meritorious constitutional claims. By 2000, additional adverse Court decisions, the defunding of capital punishment resource centers, and the enactment of the misleadingly titled Anti-Terrorism and Effective Death Penalty Act of 1996 had made the situation dramatically more unfair. Amsterdam’s keynote talk at an ABA moratorium symposium (published in 4 N.Y. City L. Rev. 117 [2002]) highlighted why, in light of these developments, a moratorium was desperately needed. In recent years, he has helped the ABA’s Death Penalty Moratorium Implementation Project determine how best to assess various state death penalty systems.

In short, Anthony G. Amsterdam is a Human Rights Hero both to those in the litigation trenches and to those working to persuade the public and legislators that—in the words of Justice Harry Blackmun, who voted against Amsterdam’s clients in Furman and Gregg but came to a different view after two decades of adjudicating capital cases—we should “no longer . . . tinker with the machinery of death.”

Ronald J. Tabak

Ronald J. Tabak is a special counsel in the New York office of Skadden Arps, where he specializes in death penalty and civil rights litigation. He is a guest editor of this issue of Human Rights.