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February 4, 2017

"The Death Penalty as Torture From the Dark Ages to Abolition"

9781611639261The title of this post is the title of this new book authored by John Bessler about to be published by Carolina Academic Press.  Here is the blurb from the Press webpage:

During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture — from the thumbscrew and the rack to the Inquisition’s tools of torment — was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.

In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria — the father of the world’s anti–death penalty movement — condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.

In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.

February 4, 2017 at 06:07 PM | Permalink


Prof. John Bessler put out a volume that provides Breyer's seminal death penalty dissent along with an extended introduction. Beforehand, he also wrote "Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment," which was a good read.

Posted by: Joe | Feb 4, 2017 7:17:58 PM

A series of ipse dixits by a lawyer, who fails to disclose the economic self interest of himself and of his profession in prolonging the lives of serial torture and kill killers. My ipse dixit is that the average person around the world, including in Europe, believes his arguments to be utter nonsense.

In the lifetime of Prof. Berman, and definitely of his children, technology will solve the debate, as has been usual in all of legal history. The lawyer has never solved any serious legal problem. CRISPR/cas9 technology will change anti-social personality people once diagnosed at age 3. In the lifetimes of Prof. Berman's children, parents will be able to get the materials needed, and do it all, on their own, at home, without a prescription. The resulting unemployment in law and in medicine will reach 50% if not more.

Here is a 4 minute MIT video reviewing the subject.


Posted by: David Behar | Feb 5, 2017 6:29:49 AM

"The lawyer has never solved any serious legal problem."

Sorry, I have to retract that accusation. The lawyer dropped the crime rate across the board by 40% with brilliant mandatory sentencing guidelines, in the 1990's. That was the greatest lawyer achievement of the Twentieth Century.

Naturally, when it caused lawyer unemployment, these were repealed by the Supreme Court.

Now, crimes are counted in the billions a year, instead of the millions. Murders are soaring in rates in 20 large American cities.

Posted by: David Behar | Feb 5, 2017 7:11:39 AM

Getting rid of led pipes for our water supply dropped the crime rate. If that was accomplished by a lawyer, it was an environmental lawyer.

Posted by: Erik M | Feb 5, 2017 9:11:29 AM

Because I believe in facts, utility and its calculations, I will agree with you, the reduction in national blood lead level was a great lawyer achievement.

Posted by: David Behar | Feb 5, 2017 1:14:07 PM

The author also does not understand the main purpose of the death penalty, the $billion death penalty appellate business. It has a nominal number, with no effect on crime. It is very expensive, people can agree, and the money goes to the lawyer profession. The lawyer did abolish it. Immediately hundreds if not thousands people were fired. The Court immediately back pedaled, and tuned to its exquisite balance of today.

Posted by: David Behar | Feb 6, 2017 12:02:07 AM

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