Law Commons^™

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

All Faculty Scholarship

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

Eradicating The Label “Offender” From The Lexicon Of Restorative Practices And Criminal Justice, Lynn S. Branham

All Faculty Scholarship

This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime. The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.” The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.” One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change …

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is)?, Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is “arbitrarily” imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was “cruel and unusual” in the same way that being “struck by lightning” was “cruel and unusual.”

It is thus surprising that the Court and those scholars who push this objection have …

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is?), Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.

It is thus surprising that the Court and those scholars who push this objection have …

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler

All Faculty Scholarship

This article explores how the death penalty and the indefinite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats.

The Marquis Beccaria: An Italian Penal Reformer’S Meteoric Rise In The British Isles In The Transatlantic Republic Of Letters, John Bessler

All Faculty Scholarship

This article traces the reception of Cesare Beccaria’s book, Dei delitti e delle pene (1764), in Britain and in colonial and early America. That book, first translated into English as An Essay on Crimes and Punishments (1767), catalyzed penal reform and the anti-gallows movement on both sides of the Atlantic. As the first Enlightenment text to make a comprehensive case against capital punishment, On Crimes and Punishments became a bestseller, appearing in multiple English-language editions and attracting much public attention. Widely read by an array of British and American lawmakers and other civic-minded penal reformers, On Crimes and Punishments was …