Abstract

The hanging judges

Twenty years ago, the U.S. Supreme Court reauthorized the death penalty after it had been briefly banned by the Court's landmark 1972 decision in Furman v. Georgia. Chief Justice Warren Burger sanctioned the reintroduction of capital punishment into American society on the premise that states would recognize that "death is different." The "death is different" doctrine, the Court proclaimed, would shield the modem death penalty from the historic problems of unfairness, arbitrariness, racism and discrimination against the poor that had long accompanied its application. Despite the procedural restrictions on capital litigation, challenges to the death penalty continued to be brought before the Court on such grounds as inadequate legal representation, disproportionate imposition on African Americans or Hispanic defendants, police or prosecutorial misconduct, and unreliable evidence. In response, the Court retracted even substantive constitutional rights to accommodate more executions.