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September 10, 2020

Readings for heading into the capital sentencing world

Next week, we will turn to an (all-too-quick) review of capital sentencing law, procedures and practices.  As the syllabus reveals, the readings for this unit (which will keep us busy through most of the rest of September) are to be provided mostly here online.  If requested, I can provided hard copies in class, and here are the electronic versions:

Chapter 3, Topic A: Regulation of Discretion in Capital Sentencing

Electronic Chapter 9: Race, Gender, and Class in Sentencing

I plan to cover the first 69 manuscript pages in the Chapter 3 materials linked here and the first 21 pages manuscript pages in the Chapter 9 materials linked here.  (Of course, you are always welcome to read more.) 

For the first week(s) of discussion, we will be giving the sleeper case of McGautha and the historic case of Furman a lot of attention.   Though only small portions appear in the Chapter 3 excerpt, I think the full McGautha and Furman are worth reading (or at least skimming) if you find constitutional history and/or death penalty procedure really interesting. 

The full McGautha can be found here; reading just the majority opinion authored by Justice Harlan (which is only 1/4 of the whole thing) is encouraged, but not required, for having extra fun throughout next week's discussion.  The full Furman can be found here; reading the whole thing could take you the rest of the semester, and our edited excerpt aspires to provide strategic highlights from each of the nine(!) opinions.  I will ask you in class to discuss which of the nine opinions you would be most likely to join, so you might want to read the full version of the one opinion you find most appealing from the Chapter 3 excerpt.

September 10, 2020 in Class activities, Course requirements | Permalink


I am curious as to why the court granted cert on Furman.

In my opinion, the justices really had no idea what they were doing. It's even more ridiculous to re-read Furman in light of what Scalia and Blackmun both said as well! If they really had no idea what they were doing why did they grant cert. Note I will hunt this down on my own, but if you have a helpful link that will save me some time!

Posted by: Christopher Wald | Sep 14, 2020 10:46:57 PM

Great question, Chris. Here is an article talking about Furman et al which seems to provide an answer in footnote 77: https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1271&context=law-faculty-publications

Long story short, there were lots and lots of Due Process and Eighth Amendment challenges to the DP throughout the 1960s percolating in lower courts. McGautha foreclosed DP claims and Furman was expected to forclose the Eighth Amendment ones. But a funny think happened on the way to a decision. And we will discuss in class a bit why the defendants had a stronger "argument" in Furman than in McGautha.

Posted by: Doug B. | Sep 15, 2020 12:34:35 AM

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