12: Capital Punishment

Question 1

problem with capital punishment in the US

Answer 1

run/administered/managed largely by the state level
- different states vary in their approaches to capital punishment

broad trend where public begins to shy away from putting people to death in practice, but immediate public backlash as soon as political elites/activists attempt to institute reforms

Question 2

why does Banner think there’s a strong and populist backlash every time we move away from capital punishment?

Answer 2

persistent strain of retributive ideology deeply-embedded within American culture

Question 3

1972 SC Furman v. Georgia

Answer 3

critical turning point in capital punishment in the US

5-4 ruling deciding that death penalty was unconstitutional in all states

did not mark the end of capital punishment but animated and mobilised an opposition that was not particularly active prior

immediately after, we see the reconstruction of state level laws to bring them into alignment with what the SC would find to be a constitutional use/administration of the death penalty

Question 4

why did Furman find capital punishment unconstitutional?

Answer 4

not on principle, but because of the arbitrary and racial outcomes of death penalty cases

states saw that the death penalty in itself wasn’t unconstitutional but laws had to be changed about the arbitrariness and racial disparities in outcomes

Question 5

what were the strategies post-Furman for states?

Answer 5

introducing mandatory sentencing when it came to the death penalty
- gets around arbitrariness

narrowing the jury’s discretion in assessing the death penalty, by following the model penal code

Question 6

• model penal code

Answer 6

splitting trials into 2 separate parts
- determining if the defendant is guilty
- determining if the death penalty is issued

in the second part of the trial, jury given specific instructions about having to find specifically defined aggravating factors and about mitigating circumstances

Question 7

1976 SC Gregg v. Georgia

Answer 7

constitutionalisation of the death penalty and the method of the model penal code

Question 8

race within capital punishment

Answer 8

Banner emphasises how the race of the victim in death penalty cases is far more predictive than the race of the defendant

if going by the logic that the death penalty is about retribution for crimes that society deems as the most heinous transgressions against society, we might infer that the taking of a white life is more heinous than the taking of a life with a different racial/ethnic background

Question 9

• punitive turn

Answer 9

1970s to present where we observe exponential growth in prison/incarcerated populations

court’s top-down attempt to roll back the death penalty with Furman which produced a conspicuous and large backlash from the voting public and state legislators which contributed to more penal harshness