“The Defendant Has Seemed to Live a Charmed Life”: Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

Abstract

“The Defendant Has Seemed to Live a Charmed Life”: Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence SIDNEY L. HARRING and KATHRYN SWEDLOW Introduction On March 7, 1887, the Supreme Court of the United States decided Fred Hopt’s fourth ap­ peal to that Court.2 The Utah Territory murderer’s conviction had been reversed three times over seven years—his “charmed life”—but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt’s four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor’s evidence of cause of death was beyond the scope of his expertise; that the trial judge’s “reason­ able doubt” jury instruction was inadequate; and that the prosecutor’s reference to the “many times the case had been before the courts” was prejudicial.3 Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary.4 Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900.5 However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had fourjury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States.6 He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.7 While death penalty appeals are in one sense only a small subset of criminal appeals, the fact that “death is different” means such appeals involve both a unique body of legal doctrine and a distinct cultural meaning. The Rehnquist Court is not the first Supreme Court to face a substantial workload of death penalty appeals.8 That distinction falls to the Supreme Court of the 1880s and early 1890s, headed first by Chief Justice Morrison R. Waite and, after 1888, by Melville W. Fuller.9 These are among the most conservative of the HOPT K UTAH 41 Supreme Courts of the United States, for a number of reasons.10 Their role in burying the Civil Rights Amendments suffices to warrant that label.11 Not only did Waite himself write opinions in United States v. Cruikshank12 and United States v. Reese13 limiting the reach of the Civil Rights Acts, he also wrote Minor v. Happersett denying voting rights to women on the ground that suffrage was not a right protected by the Fourteenth Amendment.14 The seven to one vote in Plessy v. Ferguson has forever put the Fuller Court in the same reactionary camp on civil rights issues.15 These same Courts, however, produced a substantial death penalty jurisprudence that is remarkable and apparently inconsistent with the rest of their work. There was little federal criminal law jurisprudence in the late nine­ teenth century. The meaning of the constitu­ tion in the area of criminal law and criminal procedure was completely unestablished; each case broke new ground.16 One hundred and fifty-one death penalty appeals reached the Supreme Court of the United States between 1875 and 1900, and 60% of those appeals led to reversals.17 Given the place of “law and order” on the conservative agenda of the 1880s and 1890s, this record is remarkable. Legal scholars, who have written exhaustively on late nineteenth-century Supreme Court ju­ risprudence—for example, sixty articles on the complex constitutional property rights case Pennoyer v. Neff13 alone—have largely ignored these cases. While the Fuller Court bore the brunt of these appeals due to changes in the law offed­ eral criminal appeals and heard 136 such cases by 1900, the Waite Court was the actual source of much of thisjurisprudence, deciding sixteen death penalty cases between 1876 and 1888, of which it reversed nine and affirmed seven. These included some very important cases that still have meaning today. Two, Ex parte Crow Dog and U.S. v...