Capital Punishment

Michael J. Perry

doi:10.1017/CBO9781139814829.008

4 - Capital Punishment

Published online by Cambridge University Press: 05 July 2013

Michael J. Perry

Show author details

Michael J. Perry: Affiliation:
Emory University School of Law

Book contents

Get access

Summary

The right not to be subjected by government to any punishment (or other treatment) that is “cruel, inhuman or degrading” is internationally recognized as a human right. A version of that right is entrenched in the constitutional law of the United States – and is therefore part of the constitutional morality of the United States: the right not to be subjected by government, federal or state, to any punishment that is “cruel and unusual.”

That the right not to be subjected by government to “cruel, inhuman or degrading” punishment is internationally recognized as a human right could not be clearer:

Article 5 of the Universal Declaration of Human Rights (1948): “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 7 of the International Covenant on Civil and Political Rights (1976): “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” As of December 2012, there were 167 State Parties to the International Covenant, including, as of 1992, the United States.
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953): “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5(2) of the American Convention on Human Rights (1978): “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
Article 5 of the African Charter on Human and People's Rights (1986): “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

Type: Chapter
Information: Human Rights in the Constitutional Law of the United States , pp. 59 - 91

DOI: https://doi.org/10.1017/CBO9781139814829.008 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Mackie, J. L., Ethics: Inventing Right and Wrong 243 (1977)

Chappell, Timothy, “Book Review,” 111 Mind 411, 412 (2002)Google Scholar

Greene, Graham, The Power and the Glory 131 (Penguin, 1940)Google Scholar

The Poet in the World (1973)

Stevens, John Paul, “On the Death Sentence,” New York Review of Books, Dec. 23, 2010

Garland, David, Peculiar Institution: America's Death Penalty in the Age of Abolition (2010)

Marshall, Lawrence C., “The Innocence Revolution and the Death Penalty,” 1 Ohio State J. Criminal Law 573 (2004)Google Scholar

“Wrongful Convictions Symposium,” 52 Drake Law Review587–738 (2004)

Liptak, Adam, “Study Suspects Thousands of False Convictions,” New York Times, April 19, 2004

Brooks, Thom, “Retribution and Capital Punishment,” in White, Mark D., ed., Retributivism: Essays on Theory and Policy 232 (2011)CrossRef Google Scholar

Lane, Charles, “End of Innocence: The Death Penalty's Self-Defeating Foes,” New Republic, Nov. 11, 2010

Kristof, Nicholas D., “Framed for Murder?,” New York Times, Dec. 9, 2010

Cooper v. Brown, U.S. Court of Appeals for the Ninth Circuit, No. 05–99004W, May 11, 2009)

Belluck, Pam, “State Panel Suggests Death Penalty Safeguards,” New York Times, May 3, 2004

Lithwick, Dahlia, “Death and Texas,” New York Times Book Review, Feb. 14, 2010

Liptak, Adam, “Group Gives Up Death Penalty Work,” New York Times, Jan. 4, 2010

Steiker, Carol S. and Steiker, Jordan M., “No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code,” 89 Texas Law Review 353 (2010)Google Scholar

Steiker, Carol S. and Steiker, Jordan S., “Part II: Report to the ALI Concerning Capital Punishment,” 89 Texas Law Review 367 (2010)Google Scholar

Kaveny, Cathleen, “A Horrific Crime: But Is Execution the Answer?,” Commonweal, May 17, 2010

Glaberson, William, “Harrowing Chesire Case Still Haunts Jurors,” New York Times, Jan. 2, 2010

Graham v. Florida, 130 S.Ct. 2011 (2010)

Ewing v. Florida, 538 U.S. 11, 25 (2003)

Evangelium Vitae (1995)

Greene, Joshua and Cohen, Jonathan, “For Law, Neuroscience Changes Nothing and Everything,” in Zeki, Semir and Goodenough, Oliver, eds., Law and the Brain 207 (2006)Google Scholar

Eagleman, David, “The Brain on Trial,” The Atlantic, July/August 2011

White, Mark D., ed., Retributivism: Essays on Theory and Policy (2011)

Dostoevsky, Fyodor, The Brothers Karamazov, 52 (1880; Richard Pevear and Larissa Volokhonsky, trs., 1990)

Smith, Robert and Cohen, G. Ben, “Redemption Song: Graham V. Florida and the Evolving Eighth Amendment Jurisprudence,” 108 Michigan Law Review First Impressions 86 (2010)Google Scholar

Brugger, Christian, Capital Punishment and Roman Catholic Moral Tradition (2003)

Camus, Albert, “Reflections on the Guillotine,” in Albert Camus, Resistance, Rebellion, and Death 230 (O’Brien, Justin, tr., 1974)Google Scholar

Murphy, Jeffrie G., Getting Even: Forgiveness and Its Limits 109–10 (2003)

Neumayer, Eric, “Death Penalty Abolition and the Ratification of the Second Optional Protocol,” 12 International Journal of Human Rights 3 (2008)Google Scholar

King, Kathryn F., “The Death Penalty, Extradition, and the War against Terrorism: U.S. Responses to European opinion about Capital Punishment,” 9 Buffalo Human Rights Law Review 161, 171 (2003)Google Scholar

Robinson v. California, 370 U.S. 660 (1962)

Thomas, Suja A., “Nonincorporation,” 88 Notre Dame Law Review (2012–13)Google Scholar

Kennedy v. Louisiana, 554 U.S. 407 (2008)

Coker v. Georgia, 433 U.S. 584 (1977)

Enmund v. Florida, 458 U.S. 782, 797 (1982)

Atkins v. Virginia, 536 U.S. 304 (2002)

Roper v. Simmons, 543 U.S. 551 (2005)

Stinneford, John F., “Rethinking Proportionality under the Cruel and Unusual Punishments Clause,” 97 Virginia Law Review 899, 926–61 (2011)Google Scholar

Stinneford, John F., “The Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation,” 102 Northwestern University Law Review 1739 (2008)Google Scholar

Trop v. Dulles, 356 U.S. 86, 100 n. 32 (1958)

Hagan, Andrew O’, “Word Wizard,” New York Review of Books, Apr. 27, 2006

Hitchings, Henry, Defining the World: The Extraordinary Story of Dr. Johnson's Dictionary (2006)

Atkins v. Virginia, 536 U.S. 304 (2002)

Roper v. Simmons, 543 U.S. 551 (2005)

Atkins v. Virginia, 536 U.S. 304, 311 (2002)

Trop v. Dulles, 356 U.S. 86, 100 (1958)

Trop v. Dulles, 356 U.S. 86, 101 (1958)

Inoue, Kyoko, MacArthur's Japanese Constitution (1991)

Freedman, Samuel G., “Faith Was on [Illinois] Governor's Shoulder,” New York Times, March 25, 2011

Furman v. Georgia, 408 U.S. 238 (1972))

Gregg v. Georgia, 428 U.S. 153 (1976))

Miller, Marc L. and Wright, Ronald F., Criminal Procedures: Cases, Statutes, and Executive Materials 184–85 (2003)

Olive, Jessica and Gray, David, “A Modest Appeal for Decent Respect,” 23 Federal Sentencing Reporter 72 (2010)CrossRef Google Scholar

Hartman, Joan F., “‘Unusual’ Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty,” 52 University of Cincinnati Law Review 655 (1983)Google Scholar

Roper v. Simmons, 543 U.S. 551, 575 (2005

Trop v. Dulles, 356 U.S. 86, 102–3 (1958))

Lee, Youngjae, “International Consensus as Persuasive Authority in the Eighth Amendment,” 56 University of Pennsylvania Law Review 63, 115 (2007)Google Scholar

Glaberson, William, “Death Penalty for 2nd Man in Connecticut Triple-Murder Case,” New York Times, Dec. 9, 2011

Donohue, John and Wolfers, Justin, “Uses and Abuses of Empirical Evidence in the Death Penalty Debate,” 58 Stanford Law Review 791, 794 (2005)Google Scholar

Donohue, John and Wolfers, Justin, “The Death Penalty: No Evidence for Deterrence,” Economists’ Voice, April 2006

Katz, Lawrence, Levitt, Steven D., and Shustorovich, Ellen, “Prison Conditions, Capital Punishment, and Deterrence,” 5 American Law & Economics Review 318 (2003)Google Scholar

Gerber, Rudolph J., “Economic and Historical Implications for Capital Punishment Deterrence,” 18 Notre Dame Journal of Law, Ethics and Public Policy 437 (2004)Google Scholar

Fagan, Jeffrey, Deterrence and the Death Penalty: A Critical Review of the New Evidence, Testimony to the New York State Assembly Standing Committee (Jan. 21, 2005)

Berk, Richard, “New Claims About Executions and General Deterrence: Déjà Vu All Over Again?,” 2 Journal of Empirical Legal Studies 303 (2005)CrossRef Google Scholar

Weisberg, Robert, “The Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny,” 1 Annual Review of Law and Social Science 151 (2005)CrossRef Google Scholar

Fagan, Jeffrey, “Death and Deterrence Redux: Science, Alchemy and Causal Reasoning on Capital Punishment,” 4 Ohio State Journal of Criminal Law 225 (2006–07)Google Scholar

Shepherd, Joanna M., “Deterrence versus Brutalization: Capital Punishment's Differing Impacts among States,” 104 Michigan Law Review 203, 205, 206–7 (2005)Google Scholar

Zimring, Franklin E., “The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code,” 105 Columbia Law Review 1396, 1409 (2005)Google Scholar

Book contents

4 - Capital Punishment

Summary

Access options

References

Save book to Kindle

Save book to Dropbox

Save book to Google Drive