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May 29, 2022
"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"
Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment. The article is authored by Mugambi Jouet, and here is its abstract:
Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application. This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.
Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court. The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment. This is truer of the Furman decision itself than of the way the case was litigated. Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity. Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath. Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.
Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus. “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs. The architect of this strategy was Anthony Amsterdam, a famed litigator. Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims. This shift has obscured how a lost chapter in death penalty history unfolded.
These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows. On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations.
May 29, 2022 at 11:22 AM | Permalink
Comments
It's perfectly obvious that the Framers did not regard the DP as inherently inhuman, since it was available at the time for many more offenses and with many fewer safeguards than it is now. It's also obvious the Americans now do not so regard it, since it's enjoyed healthy majority support for more than four decades.
I'm sure Leftist European intellectuals look down on America's death penalty, just as they look down on most or all other things American. Well isn't that precious? Most people in the Orient, Africa, the Middle East and the Subcontinent agree with the USA. Why do their opinions count less than those of (white) Europeans.
Racism, maybe? Goodness, gracious You abolitionists are so "anti-racist" -- when you want to be.
Posted by: Bill Otis | May 29, 2022 2:55:28 PM
I believe there are crimes which deserve death. But under the current system, the risk of wrongful conviction is much too high. I suggest the death penalty be suspended until 20 years go by during which nobody is wrongfully convicted of any felony anywhere in the US.
And until plea bargains are abolished, since the main use of the death penalty today is as a threat to coerce people into pleading guilty and accepting a sentence of life without parole.
Posted by: Keith Lynch | May 30, 2022 12:24:41 AM
Keith Lynch --
-- What part of the system do you think should be suspended until we go 20 years without a wrongful acquittal (followed by the wrongfully acquitted defendant's going out and doing it again, only worse)?
Suppose the school shooter had been taken alive. What sense would there be in refusing to allow the jury to consider the death penalty for someone whose factual guilt of a grotesque crime is beyond any sane doubt? What is gained by that?
-- Defendants and the defense bar have right now, at this moment, the means to abolish plea bargaining: Don't do it and go to trial. Thousands already do.
Posted by: Bill Otis | May 30, 2022 8:45:13 AM
LOL, Otis floats the ludicrous claim that the left's opposition to the death penalty is based on "racism" in the same post where he mentions "The Orient." Never change, Billy.
Posted by: AFPD | May 30, 2022 3:51:49 PM
AFPD --
If you think there is no such thing as the Orient, or need help finding it on a map, I can help with that. If you need help supporting star defense client Byron De La Beckwith, that you'll have to do on your own.
Posted by: Bill Otis | May 30, 2022 5:14:41 PM
Mr. Otis writes, "I'm sure Leftist European intellectuals look down on America's death penalty, just as they look down on most or all other things American." One thing European intellectuals do look dowwn on is America's penchant for letting its kids be murdered by maniacs who can easily access weapons of war.
Posted by: anon12 | May 31, 2022 10:24:10 PM
Mr. Otis, there may be absolutely no doubt of the latest school shooter's guilt, but where exactly do you draw the line between absolutely no doubt and a small amount of doubt? It's indisputable that the current "reasonable doubt" standard doesn't work, given that there have been hundreds of death penalty exonerations in recent decades. As for plea bargains, they're not much of an issue in cases where someone is sentenced to death. Indeed, in most cases the threat of the death penalty is used only to coerce the possibly-innocent defendant into pleading guilty and accepting a sentence of life without parole.
And is there ever really absolutely no doubt? Would you be willing to accept a law that said that if someone was wrongfully convicted and sentenced to death, the prosecutor and all 12 jurors would be executed? I didn't think so. So maybe there really is some residual doubt.
I agree that there are people who deserve death. But I have enough humility to admit that I'm not the one to make that decision, even if I'm on a jury. Neither is anyone else.
A more interesting question about the recent school shooting, given that for more than an hour all the police did were stand outside and prevent parents and rescuers from ending the carnage or rescuing the gravely wounded children who were bleeding to death, is whether, if an armed parent had shot one or two cops who were standing in their way, and then gone inside an shot the school shooter, causing there to be fewer total deaths, whether that parent should be charged with any crime.
Getting back to non-wealthy defendants having a right to a trial, that's about as meaningful as a five-year-old girl having the right to trial by combat against the world heavyweight boxing champion.
Posted by: Keith Lynch | May 31, 2022 11:31:53 PM
anon12 --
"One thing European intellectuals do look dowwn on is America's penchant for letting its kids be murdered by maniacs who can easily access weapons of war."
1. There is no such "penchant." https://ringsideatthereckoning.substack.com/p/the-school-shooting?s=w
2. If there were a "penchant" for murdering masses of schoolchildren, that would an argument for the death penalty (and other strong disincentives), not against it.
Posted by: Bill Otis | Jun 1, 2022 9:40:41 AM
Keith Lynch --
"Mr. Otis, there may be absolutely no doubt of the latest school shooter's guilt, but where exactly do you draw the line between absolutely no doubt and a small amount of doubt?"
On a case-by-case basis. The fact that there can be some doubt in some cases is hardly a reason to give a windfall to grotesque killers in airtight cases like this one (and Timothy McVeigh's and Dzhokhar Tsarnaev's).
"It's indisputable that the current 'reasonable doubt' standard doesn't work, given that there have been hundreds of death penalty exonerations in recent decades."
Name a single factually innocent person who has been executed in the past five decades according to any court or to any NEUTRAL source.
"And is there ever really absolutely no doubt?"
Yes, as you all but concede in your first sentence.
"I agree that there are people who deserve death. But I have enough humility to admit that I'm not the one to make that decision, even if I'm on a jury. Neither is anyone else."
Two hundred years of American law, plus such Presidents as Washington, Lincoln, FDR, Eisenhower, Reagan, Clinton and Obama beg to differ. Are you more morally insightful than they?
"Getting back to non-wealthy defendants having a right to a trial, that's about as meaningful as a five-year-old girl having the right to trial by combat against the world heavyweight boxing champion."
So the Framers pulled a con job on us?
Posted by: Bill Otis | Jun 1, 2022 9:58:48 AM
Mr. Otis, you demand, "Name a single factually innocent person who has been executed in the past five decades according to any court or to any NEUTRAL source."
Not a fair question, since, as I'm sure you know, courts never hear appeals by dead people. But okay, how about Cameron Todd Willingham? We'll probably soon add Barry Lee Jones to the list, since SCOTUS said so what if he's innocent, go ahead and fry him.
If five decades is your time horizon for relevance to the current system, then my case is getting close to irrelevance. And why then do you bring up the founders? Their actions were a lot more than five decades ago. The founders had some good ideas, but they also had some spectacularly bad ideas, such as slavery and the theft of Indian land.
As for whether I conceded that the recent alleged school shooter was definitely guilty, I did not. I merely said I had no reason to doubt his guilt. There have been other cases where a mass shooter was stopped by a hero who took his gun, only for cops to then shoot the hero. A better example of near-certain guilt is the recent Buffalo shooter who live-streamed his rampage. He survived, and I'm curious what argument his attorney will make. Of course he'll probably plead guilty in return for not facing the death penalty. And what's so horrible about him not being executed? It's not as if he will ever be freed, or as if life in prison is a luxury vacation.
Posted by: Keith Lynch | Jun 1, 2022 10:28:21 PM
