This chapter addresses the various legal and psychological factors that affect the decision-making process by which capital jurors reach penalty phase verdicts. Capital jury trials are unique in a number of respects, including the fact that jurors are selected through a special process of “death qualification,” consider a wide range of evidence that would otherwise be excluded in the typical criminal case, and, in the final analysis, must make the morally daunting decision of whether someone lives or dies. Social science research has documented the way that the very process of selecting a jury can affect capital jury decision-making processes, whether and how jurors consider the full range of evidence that is presented to them, the various ways that stereotypes, heuristics, and attributions might bias the sentencing verdicts ultimately rendered, and the “morally disengaging” aspects of the capital trial itself. Future research and policy implications are discussed.

The Supreme Court issued a plurality opinion holding that Ehrlich Anthony Coker’s sentence of death for the rape of an adult woman was “grossly disproportionate and excessive punishment” in violation of the Eighth Amendment. Unlike other cases from the era, which focused on the procedures for administering capital punishment, the Court found the death penalty excessive for the crime of rape regardless of the procedures used to reach that determination. Notably, an amicus brief authored by Ruth Bader Ginsburg, outlining the feminist case against applying the death penalty in cases of rape, did not serve as the basis for the plurality’s reasoning. Instead, the Court adopted rationales that many consider to be patriarchal and patronizing toward women.

The Introduction gives a snapshot of the current status of capital punishment around the globe. It gives current statistics from Amnesty International and describes Amnesty International's anti-death penalty campaign in the 1970s that led to the Declaration of Stockholm, which expressed "total and unconditional opposition to the death penalty." The Introduction describes the divide between retentionist and abolitionist countries, highlighting countries that have outlawed capital punishment in their constitutions or through judicial rulings. After detailing how the death penalty was traditionally seen as something other than torture, the Introduction discusses the law's evolving nature--and how the death penalty is increasingly seen as a torturous and cruel punishment that violates human dignity and fundamental human rights. Noting that death sentences are no longer treated as a "lawful sanction" in many locales, the Introduction describes how the U.N. General Assembly has voted on multiple occasions for a global moratorium on executions. The Introduction summarizes the current state of international law as regards capital punishment and previews the book's content.

This chapter describes the immutable characteristics of capital punishment, which kills people and uses death threats by state actors. Death threats are ordinarily treated as unlawful acts, with threats of impending death treated as psychological torture where a person is helpless to prevent death. The chapter discusses how mock executions and various corporal punishments are already treated as torturous acts, including by laws and legal commentators. After discussing the duty of government officials to protect people, including inmates, from harm, as well as how jurists in multiple jurisdictions have recognized the death row phenomenon (i.e., the suffering associated with prolonged stays on death row), the chapter describes how countries have refused to extradite individuals without assurances that the death penalty will not be sought. The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains a "lawful sanctions" carve-out to the definition of torture, but case law makes clear that lawful sanctions cannot themselves amount to torture. The chapter argues death sentences inflict severe pain and suffering amounting to torture.

The Conclusion summarizes the book's major themes and arguments, concluding that the death penalty has the immutable characteristics and indicia of torture. The Conclusion asserts that capital punishment violates fundamental human rights, including the right to be free from torture. Non-lethal corporal punishments and mock executions have already been prohibited by law, and the Conclusion asserts that capital punishment should be barred by an existing jus cogens norm--the peremptory norm of international law absolutely prohibiting torture--to stigmatize the practice of capital punishment as a torturous one that has no place in the twenty-first century or in law.

Argued October 15, 1986.Decided April 22, 1987.

Rehearing Denied June 8, 1987.

BARNES, J. delivered the opinion of the Court. Powell, J. joined in all but Part II. Rehnquist J. filed a dissenting opinion, in which O’Connor, Scalia, and White joined.

Defendant McCleskey filed a writ of habeas corpus in the Northern District of Georgia challenging a 1979 murder conviction and death sentence imposed in Fulton County, Georgia. The petition, which the District Court and the Eleventh Circuit Court of Appeals denied, questions whether statistical evidence from research studies that strongly suggest racial considerations factor into capital sentencing jury deliberations, provides a basis to determine the petitioner’s sentence was unconstitutional under the Eighth Amendment or Fourteenth Amendment. We now reverse those decisions based on empirical data strongly corroborating a significant risk exists that McCleskey’s sentence involved unconstitutional race discrimination in violation of both the Eighth Amendment and the Fourteenth Amendment.

Selective enforcement and people’s community continued to order offenders and punishments until the bloody end. Widespread defiance during the invasion of Allied forces shook radicals. Himmler had to intervene when security services defied the HSSPF over unsanctioned orders to execute Aryans. Mass arrests and forced evacuations sufficed instead. Mass releases followed as counterattacks relieved pressure. The security services decentralized authority to avoid the same problem during the new year. A regional triumvirate maintained legitimate oversight with joint orders of execution. Punishable offences became death sentences and imprisonment served as a warning. Most Germans were released, and most foreigners were murdered. An epilogue traces how the Gestapo Leader Gerhard Dahmen presented selective enforcement as resistance from within the system during denazification. The main conclusions link this to how a predictable criteria of political reliability grounded in people’s community allowed targeted persecution to be presented as a public good. A mutually reinforcing dynamic of popular support and terror targeting socio-political outsiders legitimized dictatorship.

After Stalingrad, the Gestapo only dealt with critics the Party identified as threats. Case load dropped 76 per cent while charges under capital offences rose to a rate of one-in-three. Yet selective enforcement continued. Each institution took on different roles. The Gestapo relied on political officials to warn loyal offenders and identify subversives. The Party singled out repeat offenders when education failed, and case officers rubber-stamped their preliminary investigations. The judiciary could then punish anything that filtered up with lengthy deterrent sentences. New roles shaped new standards and practices. The damning classification of “doubtful attitudes” blurred lines between defeatism and subversion. Distinctions between actions and motive disappeared for repeat offenders. Investigation practices also sharpened as focus narrowed to targeted minorities and opinionmakers. Surveillance and torture were used in any case with the slightest hint of organized resistance. Sentencing practices followed in step. Leftist slogans were once again treason, and Marxists who encouraged surrender risked execution. The dangers multiplied for a select few deemed opponents by the Party.

The war restructured the justice system. Hitler, haunted by the “stab-in-the-back” of 1918, assigned the courts and the Gestapo new roles to safeguard morale. The courts would issue severe sentences to deter dissent, while the political police would ensure that only true opponents faced prosecution. Draconian punishments checked defeatism, while descriptions of the convict preserved support by communicating who was targeted and why. The Gestapo enabled these sentences by resolving lesser offences. Heydrich issued new Principles of Internal State Security during the War authorizing warnings to “correct the mindset and strengthen the will” of supporters who strayed in “momentary weakness.” The new policy also permitted extrajudicial executions to “brutally liquidate” any serious threat to morale. Practically, very little changed about who and what kinds of behavior were a threat. The new policy continued targeting political opponents, criminals, and public offences. Previously, officers had intervened on a case by case basis. Now, station leaders bore personal responsibility for deciding whether to press charges. Selective enforcement passed from the state prosecutor to the Gestapo.

“’A Power Able to Overawe Them All’: Criminality and the Uses of Fear,” begins with a discussion of criminality in The Queen v. Eduljee Byramjee (1846). At the heart of the case was the question of whether criminal convictions could be appealed to the Privy Council. On the one hand, to limit appeals to the Queen would implicitly serve to undermine her absolute sovereignty. On the other hand, granting the right to appeal would undermine the authority of the colonial courts and intervene in the social, political, and economic uses to which Indian criminals were put. This chapter also shows how the fiction of Indian criminality became useful to the exercise of British sovereignty. As the last ready supply of working bodies after the abolition of slavery, and the end of British penal transport, Indian criminals provided essential physical labor for the territorial expansion of Empire. The rhetoric of Indian degeneracy, then, was central to both the ideological and material terms by which the British consolidated and expanded their sovereignty. (Word Count: 10,500)

Humanitarianism and human rights use different notions of innocence to talk about victims and different understandings of how victims are created and cared for.

The Statute does not specify the penalty for specific crimes, leaving it to the Trial Chamber to fix a custodial sentence to a maximum of thirty years and, ‘when justified by the extreme gravity of the crime and the individual circumstances of the convicted person’, life imprisonment. Reflecting developments in international human rights law, the Court excludes any possibility of capital punishment. It may also impose a fine. The main objectives in imposing sentence are retribution and deterrence. Aggravating and mitigating factors are set out in the Rules of Procedure and Evidence. The convicted person may apply for early release after serving two-thirds of the sentence or, in the case of life imprisonment, after twenty-five years. Sentences are served in the domestic prisons of a State Party that has been so designated by the Trial Chamber.

Chapter 3 explores divine responses to the ways God responds to the ruptures wrought by violence in the physical world, especially as presented in Genesis 8-9. In Gen 8:22, God assures humanity that he would uphold the cycles of creation in the face of human corruption, such that it would not sustain the impact of violence as it did before the flood. Psalm 74 portrays an analogous world in which God’s ongoing power over creation subdues the chaotic ruin that violence unleashes in the world. I also suggest that God’s promise to never again curse the land reverses the land curse arising from Cain’s act of violence (4:12). This chapter also addresses the ‘laws’ of Gen 9:1-6. Some understand Gen 9:1-6 to address humanity’s bloodlust for violence. God tolerates a modicum of violence against animals, but restrains it. I suggest by contrast that the ‘fear and dread’ reflects the fractured relationship between humans and animals. Also, the so-called ‘laws’ only point toward the need for law, and in the world of the story, indicate only what God himself will do. Moreover, the text restricts humanity’s power over the life(blood) of animals. Finally, the creation covenant (9:7-18) reflects ways that God restricts the use of divine violence in the post-flood world. This creation covenant anticipates God’s later covenants with Israel and the land.

The eighteenth century has been considered a flourishing era during the Qing dynasty, but the century also witnessed an upsurge in interpersonal violence that triggered a protracted crackdown on crime. Part of a broader ‘legislative turn’, Qing rulers responded with legislation that fine-tuned existing laws, created new offences, restricted pardons and expanded the use of the death penalty. By embracing a strategy that deployed the presumed deterrent power of capital punishment, eighteenth-century emperors presented staggering practical and ideological challenges that threatened to overwhelm the judicial bureaucracy. Violent crime exposed fissures in the social order that endangered bedrock principles such as ties of filiation, patriarchal privilege, social hierarchy and female chastity. Evidence gleaned from homicide reports illustrates incidents of horrendous violence that were inextricably linked to macro-economic and demographic changes. The rural poor engaged in survival strategies that were desperate, pathetic and horrifically violent. Unfortunately, the crackdown on crime alone could not adequately address the inequities of eighteenth-century economic and demographic change that undermined social and economic norms, vitiated conventional concepts of justice, and disrupted the ideological consensus of Chinese civilisation.

The chapter explores how, as an ‘empire of difference’, Russia from the sixteenth to the eighteenth centuries tolerated local law for lesser crimes among the empire’s diverse peoples but insisted on the tsar’s law for high crimes (murder, recidivist robbery and theft, treason and heresy and the like). The bureaucracy established a remarkable uniformity of documentary form, judicial procedure and legal norms across the empire. In local courts knowledgeable scribes, in the absence of a professional bar, juridical faculties and notaries advised governors who were untrained amateurs. Lacking jurisprudential expertise, criminal codes were laconic, workaday compendia of fines and penalties primarily intended to police official corruption. Punishment was primarily corporal, but in local courts violence was mitigated by judges’ use of mercy to preserve community stability and by their reliance on locals to staff court and executioners’ roles. Violence, in torture and corporal and capital punishment, escalated in the prosecution of highest crime (treason, heresy), but Muscovy did not conduct European-style theatrical spectacles of suffering until Peter I witnessed them in the 1690s. Even so, from the late 1600s Russia relied increasingly on exile and abolished capital punishment for all crimes but treason by the end of the eighteenth century.