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The New DP
Last time -- Post WW 2 global changes
– Long decline of DP (150 years!)
– Decline accelerated after WW 2 ...
– then accelerated again in the 1970s ...
The New DP
Result up to now (and still continuing) is
de facto abolition (halt to executions) in
over half of all countries in the world ...
Plus -- abolition increasingly embedded in
International Law and constitutions.
(part of evolution of human rights doctrine)
The New DP
Zimring and Hawkins
Politics of DP and patterns:
– On again - off again abolition
– Leadership from the front
– Modernization (urbanization, etc.)
(a global developmental process)
The New DP
Similar processes in the US before the
“conservative turn” (from mid-1970s on)
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On again - off again abolition
The Civil Rights Movement
The Moratorium Campaign
The end of executions in the 1960s
(leadership from the front)
– and then Furman v. Georgia 1972
The New DP
Furman v. Georgia 1972
(context for tonight)
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Applied to all state DP statutes
Commuted all sentences (600-700)
DP Arbitrary, Capricious, Discriminatory
DP an embarrassment, no policy purpose
The New DP
Only legal argument supporting DP was
“states rights” - historically identified with
the South – and racism and discrimination!!
Voting rights
Schools
Jobs
Even marriage!!
Public Facilities
Housing
The New DP
Court didn’t rule DP itself unconsti application of DP was unconsti
Thurgood Marshall’s history of the DP
identified problems with application
The New DP
Discrimination
Minorities and immigrants -any offense against white victims
Juries, representation, lack of appeals, commutes
denied, etc.
Every pattern was discriminatory!!
The New DP
Other issues:
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Shoddy trials and mistakes
Cost of trials - who pays?
What crimes?
Women?
Juveniles?
MR/MI?
If no deterrent, why do it??
The New DP
New DP reading:
Furman majority - 5 pre-Nixon appointees
Dissenters
- 4 Nixon appointees
Background -Federal intervention starting in the 1950s
The New DP
1940s - Truman integrated military
1950s - Brown v. Board of Educ
1960s - Civil Rights, Voting, Housing,
Public facilities, etc.
Legal “Modernization” –
but mostly imposed by Federal Govt
The New DP
Then Nixon’s “Southern strategy”
(“strict constructionism”)
(First 2 appt - Carswell & Haynesworth)
Split Court -- pre-Nixon vs. new court
- Civ Rights, women, abortion, etc.
Furman right in the middle of all this!
The New DP
The response to Furman 1972-76
- Backlash and new DP laws (South!)
- Georgia and Furman - “model law”
- Fifth new justice - new majority!!
(John Paul Stevens!!)
The New DP
Gregg v. Georgia 1976
“New improved DP” -- 7 - 2 vote
Court promised to fix problems.
Rejected mandatory death sentences,
upheld state laws with 3 reforms
The New DP
Three reforms:
– Guided discretion
– Bifurcation
– Automatic review
Then a strange twist in 1977 -an “accident of history” - Gary Gilmore
The New DP
Coker v. Georgia 1977
(“fourth reform”)
The case &
underlying meaning
– Rape, DP, and discrimination
– Almost all southern B/W cases
The New DP
Strickland v. Wash
1984
By now Supreme Court dominated by conservatives
(Nixon, Ford, Reagan appointees)
Problem of inadequate representation
(esp. south and appointed attys)
(Note: ABA recommendations)
The New DP
McCleskey v. Kemp
1987
Problem of racial discrimination
Georgia data
the Baldus study
Patterns of discrimination
B/W overrep
B/B underrep
The New DP
Herrera v. Collins
1993
Innocence and new evidence after deadlines
Texas case
The New DP
Felker v. Turpin
1996
Bill Clinton supported the DP
Republican congress elected in 1994
Anti-terrorism and Effective DP Act
Limiting appeals to “one bite at the apple”
“Fast tracked” by conservative court
The New DP
The Failure of Reform
In Gregg, the Supreme Court promised
to fix the problems with the DP.
As the Court (and the country!) became
more conservative, the Court abandoned
reform, and let DP return to old problems.
The New DP
Coker - last reform (eliminated worst racism)
Strickland - no reform
McCleskey - no reform
Herrera - no reform
Felker - no reform
The New DP
“Stalemate” and the “Broken System”
Last irony - as conservative political grip tightened,
the DP started a long decline!!
Two recent court cases - MR & Juvs
Decreasing death sentences and executions
Five states abolish the DP outright
Public support decreasing
The New DP
Calif DP:
– Long history
– Abolition
– Reinstatement
– Broken system