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The Road to Abolition?

The Road to Abolition?: The Future of Capital Punishment in the United States

Charles J. Ogletree
Austin Sarat
Copyright Date: 2009
Published by: NYU Press
Pages: 384
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  • Book Info
    The Road to Abolition?
    Book Description:

    At the start of the twenty-first century, America is in the midst of a profound national reconsideration of the death penalty. There has been a dramatic decline in the number of people being sentenced to death as well as executed, exonerations have become common, and the number of states abolishing the death penalty is on the rise. The essays featured in The Road to Abolition? track this shift in attitudes toward capital punishment, and consider whether or not the death penalty will ever be abolished in America.The interdisciplinary group of experts gathered by Charles J. Ogletree Jr., and Austin Sarat ask and attempt to answer the hard questions that need to be addressed if the death penalty is to be abolished. Will the death penalty end only to be replaced with life in prison without parole? Will life without the possibility of parole become, in essence, the new death penalty? For abolitionists, might that be a pyrrhic victory? The contributors discuss how the death penalty might be abolished, with particular emphasis on the current debate over lethal injection as a case study on why and how the elimination of certain forms of execution might provide a model for the larger abolition of the death penalty.

    eISBN: 978-0-8147-6254-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction: Toward and Beyond the Abolition of Capital Punishment
    (pp. 1-16)
    Charles J. Ogletree Jr. and Austin Sarat

    Civil societies have historically tried to distinguish the crime of murder from other offenses. Typically, murder has been subject to the most severe punishment and most intense public outcry. Countries with vastly different forms of government and systems of punishment find common ground on the seriousness of the crime committed by a person who causes another human being’s death. The twentieth century, though, witnessed yet another kind of convergence around murder: nations of every political persuasion ended their use of death as a punishment for murder and other crimes.¹ They declared the death penalty to be unconstitutional, unacceptably cruel, or...


    • 1 The Executioner’s Waning Defenses
      (pp. 19-45)
      Michael L. Radelet

      Hugo Adam Bedau, my mentor, friend, and hero, turned 82 years old in 2008. I began research on capital punishment in 1979, when I was 28. If I am lucky enough to live as long as Hugo already has, I will have a 54-year career of death penalty work. Consequently, this essay is (more or less) my midway report and reflection on where we are on the road to abolition. My guess is that when I turn Hugo’s age in 2032, the only scholars writing about “The Death Penalty in America”¹ will be historians.

      How can that optimism be justified?...

    • 2 Blinded by Science on the Road to Abolition?
      (pp. 46-71)
      Simon A. Cole and Jay D. Aronson

      The central conceit of this essay is that the rhetorical invocation of science has been crucial to whatever recent progress the United States has made along the “road to abolition.” Here we focus on three important milestones. First is what has been called the “innocence revolution,” the harnessing of public awareness of wrongful convictions to stir up opposition to capital punishment based on the possibility of executing the innocent.¹ This trend has rested heavily on the “epistemological certainty” of DNA evidence.² Second was the recent (but temporary) de facto moratorium on executions generated by legal challenges to lethal injection protocols....

    • 3 Abolition in the United States by 2050: On Political Capital and Ordinary Acts of Resistance
      (pp. 72-96)
      Bernard E. Harcourt

      Is the United States on the road to abolition, and, if so, by when will it have abolished the death penalty? The federal structure of the United States complicates the answer to these questions; nevertheless, recent trends in the United States and within the larger international community suggest that the country is headed toward abolition of capital punishment. In all likelihood, a number of retentionist states will converge toward abolition over the course of the next 20 years. The combination of this domestic shift and the legal and political pressure of the international community will likely result in the U.S....

    • 4 The Beginning of the End?
      (pp. 97-138)
      Carol S. Steiker and Jordan M. Steiker

      Is nationwide abolition of capital punishment a realistic prospect in the United States? This question has taken on new urgency as the United States has become increasingly isolated in its retention and use of the death penalty. Most nations of the world—including many third-world countries—have abolished the death penalty, leaving the United States as theonlyWestern industrialized nation in the world to formally retain the practice. Moreover, our retention is not merely formal: even recently, after death sentences and executions have declined for several years in a row, we have witnessed, on average, approximately one execution each...

    • 5 Rocked but Still Rolling: The Enduring Institution of Capital Punishment in Historical and Comparative Perspective
      (pp. 139-180)
      Michael McCann and David T. Johnson

      The abolition of capital punishment is a much discussed but complicated concept, and the standards for measuring where the United States is on the road to abolition are far from obvious. For one thing, a de facto halt in executions could (and often does) occur without a de jure prohibition of the death penalty. As of the end of 2007, some 33 nation-states had gone at least 10 years without a judicial execution, and many others had so greatly narrowed the category of crimes eligible for capital punishment and so limited prosecution of those crimes that they were essentially abolitionist...


    • 6 For Execution Methods Challenges, the Road to Abolition Is Paved with Paradox
      (pp. 183-214)
      Deborah W. Denno

      The death penalty’s popularity has waned appreciably in recent years. Whether because of disturbing discoveries of innocence among death row inmates, the narrowing of the classes of individuals eligible for execution, racial disparities, botched executions, or other reasons, the courts and the public have shown more skepticism of the capital punishment process in the twenty-first century than they have since the early 1970s.¹ Riding high on the momentum of this snowballing development are challenges to lethal injection under the Eighth Amendment’s Cruel and Unusual Punishments Clause.² According to one death penalty commentator, these challenges “have already held up more executions,...

    • 7 Perfect Execution: Abolitionism and the Paradox of Lethal Injection
      (pp. 215-251)
      Timothy V. Kaufman-Osborn

      The U.S. Supreme Court’s ruling inBaze v. Rees,which affirmed the constitutionality of Kentucky’s lethal injection protocol, represented a setback, if not an outright defeat, for foes of the death penalty in the United States. Most obviously, the plurality opinion rejected the petitioners’ proposed standard, which contended that the Eighth Amendment prohibits execution methods that pose an “unnecessary risk of pain” in light of available alternatives.¹ Instead, Chief Justice John Roberts declared that, in order to constitute cruel and unusual punishment, a protocol must create “a demonstrated risk of severe pain,” and there must exist “feasible” and “readily available”...

    • 8 “No Improvement over Electrocution or Even a Bullet”: Lethal Injection and the Meaning of Speed and Reliability in the Modern Execution Process
      (pp. 252-278)
      Jürgen Martschukat

      “The debate over capital punishment has reached a tipping point,” the editors ofLancetcharacterized the current situation in the February 2007 issue of their magazine, which is top ranked among medical publications.¹ For years, wrongful convictions and a steadily growing number of exonerations from death row had raised concerns about capital punishment, before confusing revelations about lethal injection had taken the death penalty system in the United States closer to the brink of collapse. In the late 1970s, after theGreggdecision by the Supreme Court and the return of capital punishment to the United States, it had been...


    • 9 Torture, War, and Capital Punishment: Linkages and Missed Connections
      (pp. 281-318)
      Robin Wagner-Pacifici

      May 2008. The presidential primary campaigns are in full swing in the United States. Mortgage foreclosures, high gas prices, the war in Iraq, and health care dominate the campaign debates and policy pronouncements. Meanwhile, crucial decisions are made by current incumbents of the three branches of government and its administrative and military agencies about the constitutionality of forms of state execution, specifically lethal injections, and forms of “unlawful enemy combatant” interrogation, specifically waterboarding. The Supreme Court has recently released its decision on the lethal injection protocol challenge (Baze v. Rees); another death-row inmate (three in the past several months) in...

    • 10 Making Difference: Modernity and the Political Formations of Death
      (pp. 319-348)
      Peter Fitzpatrick

      To continue seeking in Derrida’s epigraphic terms may seem to contradict the telos of an unswerving “road to abolition,” but to continue seeking is, rather, to intimate an open, perhaps a more sinuous, road. Bluntly, selfstyled “modern” political formation both sustains and counters the death penalty, and it does so in a way, along a road, that is antinomic yet constituent of the formation itself. It is the contrary dimensions of the antinomy as they combine in different realized forms that either diminishes the death penalty or sustains it. And even as the antinomy leaves the road to abolition open,...

  8. About the Contributors
    (pp. 349-352)
  9. Index
    (pp. 353-374)