There were over 2800 people on Death Row U.S.A. in the Spring of 1994.  To learn how they got there, we must look back to 1968 when a small group of civil rights lawyers at LDF began a concerted effort to halt the blood bath of racially discriminatory executions.  The process of selecting the persons who would be executed was as vicious as the crimes some of the people were accused of committing.  The system was racially discriminatory from beginning to end.  The fortitude and foresight of LDF in entering this fight ranks at the pinnacle of the American legal profession's courageous acts.
 The LDF plan was to impose a moratorium on executions in the United States that would drastically increase the number of people on death row and force the Supreme Court to choose between striking down the death penalty or sanctioning an unprecedented "blood bath."  To manufacture that "threat of a crisis," LDF had to provide counsel "to represent every death row inmate" in post-conviction proceedings and "raise the entire range" of constitutional challenges to capital punishment in every case where an execution was "imminent."  LDF quickly achieved its goal of halting all executions in the United States in part because Anthony Amsterdam, a dedicated and brilliant constitutional scholar, and others devised a series of broad constitutional challenges to the death penalty in standardized briefs and pleadings called "Last Aid Kits" that could be signed and filed "as is" by any lawyer.  In 1972, the Supreme Court accepted LDF's thesis that the Eighth Amendment forbids standardless capital sentencing in Furman v. Georgia, and held by a vote of 5-4 that none of the 632 people on death row could be executed.
 The strategy somewhat followed the successful LDF strategy that was used in school desegregation cases.  An important ingredient that made this strategy viable was the strong support in certain segments of the public.  Public opinion was one of the driving forces that allowed and motivated the courts to accept the strategy.
 LDF tinkered with the moratorium strategy when the states, and particularly the states in the South, predictably reacted to Furman by passing new statutes that required standards for imposing the death penalty in a bifurcated trial.  Little thought was given to defending capitally charged individuals pre-conviction because there were "a staggering number" of fairly broad constitutional challenges to the new statutes that could be raised by any lawyers who could sign their names to a brief supplied by LDF.  The director of LDF, Jack Greenberg, believed that this litigation would gradually result in the de facto  abolition of the death penalty.   Michael Meltsner, one of the architects of the moratorium strategy, believed that it was "probable" that the Supreme Court would "not permit an experiment with sentencing standards where the price of error is human life."
 These statements may seem incredibly naive in light of recent Supreme Court precedents that bar federal habeas corpus review of many "substantial" claims that undermined the "accuracy of a sentencing decision" in a capital trial, but it was not clear to most, and maybe itself, that the Court was heading in that direction in the early seventies.  LDF exploited the Court's fear of error in capital sentencing by devising a daring argument that Furman both requires objective standards for imposing the death penalty and forbids standards for granting mercy.  The genius of this argument was that it applied to every one of the new death penalty laws; every statute gave the jury too much discretion to impose capital punishment or insufficient discretion to impose a life sentence.  In 1976, the Supreme Court examined LDF's Catch-22 thesis in five cases that considered facial constitutional challenges to post-Furman death penalty laws, but it held that three of these new statutes struck the proper balance between objective standards for imposing the death penalty and discretion not to impose it.  The greatest intellectual blunder in these decisions was upholding the Texas statute.  The decision in Jurek v. Texas, and the application of the death penalty in general in Texas, is a constant source of intellectual embarrassment to advocates of the death penalty.
 LDF's strategy of nibbling the death penalty to death by arguing that the standards for imposing it were too broad and too narrow at the same time might have succeeded were it not for the fact that then Justice William Rehnquist, now the Chief Justice of the United States, devised an equally ingenious strategy for abolishing the federal writ of habeas corpus through judicial fiat.  It was crucial to be able to challenge individual death sentences in federal habeas corpus proceedings because the Supreme Court could not use its certiorari jurisdiction to review each feature of all of the new death penalty statutes and most of the state courts were hostile to constitutional attacks on capital punishment.  In 1977, Justice Rehnquist wrote an opinion in Wainwright v. Sykes that made it virtually impossible to raise constitutional claims in federal habeas corpus proceedings that were not preserved with a contemporaneous objection at trial.  This struck at the heart of the moratorium strategy because it was unrealistic to expect the level of lawyer representing indigent persons in death penalty cases to become familiar with LDF's growing list of constitutional objections to the various features of the new laws and raise all of them in every case.
 In fact, there was sometimes a conflict between LDF's strategy for reversing death sentences and sound trial strategy for avoiding the death penalty.  For example, in 1977, a Texas trial lawyer had to object to a jury instruction that tracked the language of a statute that the Supreme Court had just upheld and introduce evidence that called for the death penalty under that law in order to properly raise one of LDF'S Catch-22 constitutional arguments that the Supreme Court finally accepted in 1989.  Unfortunately, most trial lawyers were willing to accept the psychologically comforting view that any death sentence would be overturned in post-conviction proceedings.  This created a perceived safety net that a death sentence would not actually result in an execution.
 It became more difficult for LDF and its allies to recruit a sufficient number of lawyers who were competent to raise all of the available constitutional challenges to the death penalty in every case where an execution was imminent.   Most lawyers were doing poorly at trial, and were failing to preserve the record for post-conviction proceedings.  In 1976, LDF drafted a mind-boggling document called "the ridiculous list" that contained some 90 new ideas for challenging death sentences.  Some of these claims required investigation and evidence to prove them.  Many of the lawyers who signed their names to the briefs and pleadings in LDF's "Last Aid Kits" and, filed them "as is" did not have the time, money, skill, training, fortitude and/or the intellectual ability to litigate and understand the purposes of the new claims on the "ridiculous list."
 For a while, the moratorium strategy continued to achieve its objective, in spite of these ominous developments.  The Supreme Court reversed all but one of the capital cases that it considered between 1977 and 1982 and recognized new rules of law that prevented almost a thousand executions.  Only six people sentenced to death under the new statutes were executed in that period and 60% of the post-Furman death sentences were reversed.
 The detrimental fallout to the LDF litigation and guidance during this period was the fact that lawyers, whether working with LDF or privately, were not raising and litigating individualized issues, and the large percentage of the cases were litigated primarily upon systemic issues.