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Law Review: Article Tracks 400 Years of America's “Inglorious Experience” With the Death Penalty

A landmark article in the Northwestern Journal of Law & Social Policy provides a “compilation of milestones in the American experience with capital punishment,” tracking more than 400 years of the “inglorious experience with capital punishment” in what is now the United States. Authors Rob Warden (pictured, left), Executive Director Emeritus at Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, and Daniel Lennard (pictured, right), a lawyer at Kramer Levin Naftalis & Frankel LLP, tracked more than four centuries of capital punishment on what is now American soil. “As our milestones show,” they write, “capital punishment … has been plagued by racism, infliction of pain both intentional and unintentional, executions for crimes to which the death penalty no longer applies, for the imaginary crime of witchcraft, and, in two instances, murders that appear not to have occurred.” The authors present more than 300 chronological vignettes that depict endemic injustice in a death-penalty system they say has “claimed lives of the mentally ill, the severely intellectually handicapped or brain-damaged, juveniles, and thousands of prisoners executed in U.S. jurisdictions that have since abolished or suspended capital punishment.” Underscoring the dangers of capital punishment, the authors explain that “for every ten death row prisoners executed” under laws enacted after the U.S. Supreme Court struck down the nation’s capital punishment schemes in 1972 “more than one has been exonerated.” Moreover, death-row prisoners “in effect committ[ed] state-abetted suicide” in nearly ten percent of the executions during this period, undermining appellate safeguards by voluntarily abandoning discretionary appeals. Although three states have acknowledged having executed innocent defendants, Warden and Lennard present evidence that “untold numbers of others who likely were innocent” also have been executed. The authors ultimately conclude that maintaining capital punishment in the U.S. makes little sense “in light of its lack of a deterrent effect on crime, its racially discriminatory imposition, the risk of executing the innocent, and its obscenely high cost.” They say that while recent judicial appointments may have delayed death-penalty abolition, the trends against capital punishment “bode well” and “the outlook for abolition of the death penalty in the United States remains positive—even if it is likelier to come later than sooner.”


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Professor John Bessler Traces Italian Philosopher's Abolitionist Legacy in New Book and Article

In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.


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Study Analyzes Causes of “Astonishing Plunge” in Death Sentences in the United States

Multiple factors—from declining murder rates to the abandonment of capital punishment by many rural counties and substantially reduced usage in outlier counties that had aggressively imposed it in the past—have collectively led to an “astonishing plunge” in death sentences over the last twenty years, according to a new study, Lethal Rejection, published in the 2017/2018 Albany Law Review. Using data on death-eligible cases from 1994, 2004, and 2014, Drake University law professor David McCord and Niagara University criminal justice professor Talia Roitberg Harmon examined a range of factors to determine what caused the more than 75% reduction in death sentences in the U.S. between 1994 and 2014. (Click image to enlarge.) The authors found that just over half the decline could be attributed to a reduction in the number of potentially death-eligible murders, as a result of a combination of lower murder rates, Supreme Court decisions making murders committed by intellectually disabled offenders and offenders aged 17 or younger ineligible for the death penalty, and the abolition of the death penalty by six states. The rest of the decline, they said, was attributable to subjective decisions by prosecutors and sentencers, a factor they called “changing perceptions of death-worthiness.” Murders in the 37 states that authorized the death penalty in 1994 fell from 19,250 that year to 12,440 in 2014—a 35.4% decline. However, death sentences dropped by more than double that rate, from 310 to 73—a 76.5% decline. McCord and Harmon also attempted to identify factors that contributed to prosecutors’ and sentencers’ perceptions of death worthiness, which accounted for nearly half of the death-sentencing decline. The addition of life without parole as a sentencing option did not, they said, have a significant impact in lowering death sentences, except in Texas. Rather, they found that death sentences were being sought and imposed at lower rates in less aggravated murder cases, in cases with multiple perpetrators, and against defendants under age 21. They also found two types of significant geographical effects: death-sentencing dropped significantly in low-population counties across the country and in five of the nation’s highest volume death-sentencing counties (Harris, TX; Cook, IL; Pima, AZ; Philadelphia, PA; and Miami-Dade, FL). While the researchers did not report how many fewer death sentences were imposed in these counties in 2014, they described the decline as having an “outsized” effect on the national total. They conclude, “The decline in death sentencing in the United States from 1994 has been relatively rapid, quite steep, and is continuing—from the endpoint of our dataset, death sentences declined from 73 in 2014 to 49 in 2015; and in 2016 only 31 death sentences were imposed. The American death penalty seems like an ever-crankier version of the Cheshire Cat: it is grudgingly disappearing, leaving behind only its frown.”


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