Law Commons^™

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

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This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

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This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

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This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …

The American Historical Review (April 2012) (Reviewing David Garland, Peculiar Institution: America’S Death Penalty In An Age Of Abolition, John Bessler

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No abstract provided.

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

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In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

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Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

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This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

Injustice Casts Shadow On History Of State Executions, John Bessler

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This article, published in the StarTribune of Minneapolis, discusses the history of lynchings and executions in the State of Minnesota. It specifically discusses miscarriages of justice that have taken place in Minnesota, along with highlighting other problems associated with capital punishment.

America’S Death Penalty: Just Another Form Of Violence, John Bessler

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The author in this piece reflects on the death penalty in the U.S. in the aftermath of the 9/11 terrorist attacks. The writer goes on to argue that capital punishment is, in and of itself, a form of violence. Also discussed in the article are the gradual removal of executions from public view, issues of deterrence and violent crime, and the author's preference for life-without-possibility-of-parole sentences.

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

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The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

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Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …

The “Midnight Assassination Law” And Minnesota’S Anti-Death Penalty Movement, John Bessler

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This article traces the history of Minnesota's anti-death penalty movement and the 1889 Minnesota law - dubbed by contemporaries as the "midnight assassination law" - requiring private, nighttime executions. That law, authored by Minnesota legislator John Day Smith, restricted the number of execution spectators, prohibited newspapers from printing any execution details, and provided that only the fact of the execution could be lawfully printed. Also commonly referred to as the "John Day Smith law," this Minnesota statute was challenged as being unconstitutional by Minnesota newspapers after those newspapers printed details of a botched hanging and were charged with violating the …

Televised Executions And The Constitution: Recognizing A First Amendment Right Of Access To State Executions, John Bessler

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This article examines the history of public and private executions and the passage of private execution laws. It concludes that existing laws restricting media access to executions – and requiring private executions that exclude television cameras – are unconstitutional. The author examines existing statutory schemes which curtail media access and prohibit the filming of executions, discusses legal challenges to such laws, and explores freedom of the press jurisprudence. In particular, the article analyzes First Amendment case law and right-of-access cases. The author also discusses the Eighth Amendment's relationship to First Amendment case law in the area of media coverage of …