Death Penalty
Dublin Core
Title
Death Penalty
Description
A review of Michael Mello's book: Against the Death Penalty.
Creator
Lynch, Michael J.
Publisher
HIST 298, University of Mary Washington
Format
3 JPGs
300 DPI
Language
English
Text Item Type Metadata
Text
[Title] Death Penalty
Not one, but two irreconcilable differences of opinion concern the death penalty in America. The first is the question of whether the death penalty is morally permissible. In the twentieth century more delicate consciences have arisen which judge the death penalty immoral, despite the universal practice of mankind in prior centuries, and general agreement among older moralists. Still many thinkers find the death penalty morally acceptable for heinous crimes by dangerous thugs; and the American people are overwhelmingly in favor of capital punishment.
I may remark parenthetically that, apart from the intellectual classes, such opposition to the existing death penalty seems to be motivated by the ugliness of all present methods of execution. It would be interesting to note the effect on public opinion if any state should begin to execute by use of an oxygen-free nitrogen chamber. Since nitrogen is a major component of air the victim notices no unpleasing odor, and, since the victim continues to exhale normally, the carbon dioxide does not build up in the blood so that no need for breath is felt prior to loss of consciousness. Such an approach would seem to mitigate some of the negative reaction to execution methods expressed in the propaganda of death penalty opponents.
The second difference of opinion, although puzzling to some, concerns how the Constitution can be interpreted to absolutely forbid the death penalty when it specifically refers to “capital cases” and the “jeopardy of life or limb.” It would seem to some that theoreticians capable of such a jump could also find ways to justify quartering soldiers in private homes.
Among the absolute opponents of the death penalty on both moral and constitutional grounds were two former supreme court justices, Brennan and Marshall. In the face of solid court majorities supporting the constitutionality of capital punishment, these two persisted for years dissenting in every capital case that reached the court, even filing dissents to the denial of certiorari.
[End of page]
As did the subjects of this book, also the author, Professor Mello (who has been counsel in more than fifty death penalty cases) wholeheartedly opposes the death penalty on both moral and Constitutional grounds. He makes no attempt at an extensive explication of the opposing arguments to either of these questions. Nor does he attempt to provide a detailed history of death penalty cases since Furman v. Georgia. His book is a salute to justices Brennan and Marshall; and with them it rejects the case law for an absolutist approach.
To the extent that the author confronts public support for executions he suggests, like Justice Marshall, that the moral position would triumph if the public were better informed. He also repeatedly brings up the popular assumption that the death penalty is applied in a racially discriminatory manner. This popular belief cannot be maintained when variables other than race are added to simplistic studies. (See “Execution by Quote?” in THE PUBLIC INTEREST, no. 116, Summer 1994 p.3). There is no hint given that this conclusion may be questionable.
Professor Mello’s interesting and varies study discusses the lives of justices Brennan and Marshall, the origins and history of dissenting opinions in the United States Supreme Court, the justification of the persistent unavailing dissents under varied theories of jurisprudence and finally the treatment of death penalty cases in the Supreme Court and the dissenters themselves. In each of these segments, except perhaps the last, the author demonstrates an admirable gift for concise and clear summarization.
For a reader who has not read a full length biography of either, the brief and excellent biographical essays on justices Brennan and Marshall provide interesting anecdotes about their appointments. It is well-known that Eisenhower described Brennan as his worst mistake. Mello [End of column] explains how that mistake occurred when both the President and his Attorney General, Brownell, assumed that Brennan was ideologically in tune with Arthur Vanderbilt, Chief Justice of New Jersey. In fact, while Brennan and Vanderbilt shared an interest in court reform, on political questions they were far apart.
Marshall’s appointment to the Court of Appeals for the Second Circuit is even more interesting since it involved a deal whereby Mississippi’s Senator Eastland agreed to advance Kennedy’s appointment of Marshall in return for an appointment to the Fifth Circuit of Herold Cox, and outspoken racist and a great embarrassment to the federal judiciary.
Following the biographies, Mello provides an account of the practice instituted by John Marshall of promulgating an opinion of the Court, rather than having the Justices give their opinions seriatim. The official opinion created the need for dissents. Brief, useful histories of the most prominent dissenters stop with Harlan on the Warren Court.
Mello’s brief biographical essays and histories serve as background study in his summary of jurisprudential theories, before he settles down to a rather dry analysis of the actual dissents by Brennan and Marshall. This section makes the interesting point that the seemingly pointless dissents to denial of certiorari were often effective messages to the lawyers below as to what points might be raised successfully in the future.
The author’s political position is always in evidence, and leads to some overstatement. Marshall is said to have resigned from a court whose “decisions invariably would increase the misery of Blacks, the poor, and the uneducated.” Lewis Powell is off-handedly described as a
[End of page]
“cynical hack”; and Clarence Thomas is attacked at greater length for no reason germane to the book.
In law professor fashion the text (210 pages) is supported by voluminous footnotes (110) pages. There is a combined index and table of cases. The book is suitable for all academic collections acquiring a broad range of materials on legal history, the Supreme Court or the death penalty. It is not intended to be useful in practice.
[End of article]
Not one, but two irreconcilable differences of opinion concern the death penalty in America. The first is the question of whether the death penalty is morally permissible. In the twentieth century more delicate consciences have arisen which judge the death penalty immoral, despite the universal practice of mankind in prior centuries, and general agreement among older moralists. Still many thinkers find the death penalty morally acceptable for heinous crimes by dangerous thugs; and the American people are overwhelmingly in favor of capital punishment.
I may remark parenthetically that, apart from the intellectual classes, such opposition to the existing death penalty seems to be motivated by the ugliness of all present methods of execution. It would be interesting to note the effect on public opinion if any state should begin to execute by use of an oxygen-free nitrogen chamber. Since nitrogen is a major component of air the victim notices no unpleasing odor, and, since the victim continues to exhale normally, the carbon dioxide does not build up in the blood so that no need for breath is felt prior to loss of consciousness. Such an approach would seem to mitigate some of the negative reaction to execution methods expressed in the propaganda of death penalty opponents.
The second difference of opinion, although puzzling to some, concerns how the Constitution can be interpreted to absolutely forbid the death penalty when it specifically refers to “capital cases” and the “jeopardy of life or limb.” It would seem to some that theoreticians capable of such a jump could also find ways to justify quartering soldiers in private homes.
Among the absolute opponents of the death penalty on both moral and constitutional grounds were two former supreme court justices, Brennan and Marshall. In the face of solid court majorities supporting the constitutionality of capital punishment, these two persisted for years dissenting in every capital case that reached the court, even filing dissents to the denial of certiorari.
[End of page]
As did the subjects of this book, also the author, Professor Mello (who has been counsel in more than fifty death penalty cases) wholeheartedly opposes the death penalty on both moral and Constitutional grounds. He makes no attempt at an extensive explication of the opposing arguments to either of these questions. Nor does he attempt to provide a detailed history of death penalty cases since Furman v. Georgia. His book is a salute to justices Brennan and Marshall; and with them it rejects the case law for an absolutist approach.
To the extent that the author confronts public support for executions he suggests, like Justice Marshall, that the moral position would triumph if the public were better informed. He also repeatedly brings up the popular assumption that the death penalty is applied in a racially discriminatory manner. This popular belief cannot be maintained when variables other than race are added to simplistic studies. (See “Execution by Quote?” in THE PUBLIC INTEREST, no. 116, Summer 1994 p.3). There is no hint given that this conclusion may be questionable.
Professor Mello’s interesting and varies study discusses the lives of justices Brennan and Marshall, the origins and history of dissenting opinions in the United States Supreme Court, the justification of the persistent unavailing dissents under varied theories of jurisprudence and finally the treatment of death penalty cases in the Supreme Court and the dissenters themselves. In each of these segments, except perhaps the last, the author demonstrates an admirable gift for concise and clear summarization.
For a reader who has not read a full length biography of either, the brief and excellent biographical essays on justices Brennan and Marshall provide interesting anecdotes about their appointments. It is well-known that Eisenhower described Brennan as his worst mistake. Mello [End of column] explains how that mistake occurred when both the President and his Attorney General, Brownell, assumed that Brennan was ideologically in tune with Arthur Vanderbilt, Chief Justice of New Jersey. In fact, while Brennan and Vanderbilt shared an interest in court reform, on political questions they were far apart.
Marshall’s appointment to the Court of Appeals for the Second Circuit is even more interesting since it involved a deal whereby Mississippi’s Senator Eastland agreed to advance Kennedy’s appointment of Marshall in return for an appointment to the Fifth Circuit of Herold Cox, and outspoken racist and a great embarrassment to the federal judiciary.
Following the biographies, Mello provides an account of the practice instituted by John Marshall of promulgating an opinion of the Court, rather than having the Justices give their opinions seriatim. The official opinion created the need for dissents. Brief, useful histories of the most prominent dissenters stop with Harlan on the Warren Court.
Mello’s brief biographical essays and histories serve as background study in his summary of jurisprudential theories, before he settles down to a rather dry analysis of the actual dissents by Brennan and Marshall. This section makes the interesting point that the seemingly pointless dissents to denial of certiorari were often effective messages to the lawyers below as to what points might be raised successfully in the future.
The author’s political position is always in evidence, and leads to some overstatement. Marshall is said to have resigned from a court whose “decisions invariably would increase the misery of Blacks, the poor, and the uneducated.” Lewis Powell is off-handedly described as a
[End of page]
“cynical hack”; and Clarence Thomas is attacked at greater length for no reason germane to the book.
In law professor fashion the text (210 pages) is supported by voluminous footnotes (110) pages. There is a combined index and table of cases. The book is suitable for all academic collections acquiring a broad range of materials on legal history, the Supreme Court or the death penalty. It is not intended to be useful in practice.
[End of article]
Original Format
Newspaper
Contributor of the Digital Item
Underwood, Drew
Student Editor of the Digital Item
Dickinson, Terra
Files
Citation
Lynch, Michael J., “Death Penalty,” HIST299, accessed July 4, 2024, http://hist299.umwhistory.org/items/show/269.