Two new books on the death penalty predict the end
of capital punishment in the United States, wrote Stephen Rohde in the Los Angele Review of Books.
In Courting
Death: The Supreme Court and Capital Punishment, Carol S. Steiker, Henry J.
Friendly Professor of Law at Harvard Law School, and her brother, Jordan M.
Steiker, Judge Robert M. Parker Endowed Chair in Law at the University of Texas
School of Law, provide a clear and comprehensive look at the 40-year modern
history of capital punishment in the United States since its reinstatement in
1976. Their blunt conclusion is that the Supreme Court “has regulated the death
penalty to death” and that “for the first time since the late 1960s, nationwide
abolition seems achievable in the foreseeable future.”
In Supreme Court history, a few dissenting opinions
have eventually won over a majority of the court. With the death of Justice
Scalia, Justice Stephen Breyer’s powerful dissenting opinion on the death
penalty in Glossip v. Gross (2015) — joined by Justice Ruth Bader Ginsburg —
may become one of those cases. In his dissent, Justice Breyer presents
compelling reasons why capital punishment violates the Eighth Amendment’s
prohibition on “cruel and unusual punishment.” Depending on the court’s makeup
after the 2016 election, Breyer’s dissent could become the law of the land.
This potentially historic dissent serves as the
focus of John D. Bessler’s short and insightful book, Against the Death Penalty. A law professor at the University of
Baltimore School of Law and adjunct professor at the Georgetown University Law
Center, Bessler provides a comprehensive 70-page introduction, briefly tracing
the evolution of capital punishment over the last 250 years, in addition to including
the full text of Breyer’s dissent. It is a timely and well-informed work that
makes a convincing case for abolishing state killing.
Together, these two books serve as an ideal graduate
course in one of the most contentious issues in American life. Courting
Deathprovides an excellent survey of the history of capital punishment and the
prospects of abolition, while Against the Death Penaltyzeroes in on the
analysis of a single Justice (two, counting Justice Ginsberg), which could
chart the legal roadmap to ending this irreversible form of criminal
punishment.
Examining the fatal flaws in the capital punishment
system could not be more timely. On November 8, 2016, the voters of California
will decide the outcome of Proposition 62, which would replace the death
penalty with life in prison without the possibility of parole, and according to
the independent Legislative Analyst, save the state $150,000 annually. In 2012,
a similar ballot measure lost by only four percent.
With almost 750 human beings on California’s death
row (the largest in the United States, with 25 percent of all people waiting to
be executed in the US), repealing the death penalty by a vote of the people
would not only save those lives (and those of untold men and women in the
future), but would also help establish the “national consensus” to achieve a
Supreme Court ruling declaring the death penalty unconstitutional nationwide.
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