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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