Wednesday, May 25, 2011

Stebenne reviews Oshinsky, Capital Punishment on Trial

H-Law has posted a review of David M. Oshinsky, Capital Punishment on Trial: Furman V. Georgia and the Death Penalty in Modern America (University Press of Kansas, 2010) (Landmark Law Cases and American Society series).

Reviewer David Stebenne (Ohio State University Moritz College of Law) describes the book as "clear, accessible, and concise
". Here's more:
Oshinsky, who holds the Jack S. Blanton Chair in History at the University of Texas, explores a curious paradox in American law and life that emerged during the middle 1960s. From that time forward for the next three decades, many more criminals were sentenced to death than during the previous generation, but only a tiny percentage of them were actually executed. Oshinsky does a fine job of explaining how the U.S. Supreme Court handed down a series of rulings (starting with the landmark case of Furman v. Georgia in 1972) that greatly diminished the states’ freedom to execute those convicted of capital crimes. He is especially good at describing the very serious splits within the Court on the death penalty issue from the late 1960s onward and their consequences. Oshinsky argues persuasively that the interpretive stance of Associate Justice Potter Stewart, who in Oshinsky’s words “appeared to want fewer executions, with scrupulous rules to punish the worst offenders” (p. 56), prevailed then, in opposition to those justices such as William O. Douglas, and Thurgood Marshall who wanted capital punishment abolished via constitutional interpretation, and those such as Byron White, Warren Burger, and William Rehnquist, who believed the death penalty enjoyed broad constitutional protection.
The book's "one basic weakness," Stebenne finds, is its "tendency to under-contextualize how and why the Supreme Court became so concerned about, and involved with, the death penalty by the later 1960s."

The full review is here.

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