Cruel and Unusual: The Supreme Court and Capital Punishment

By Michael Meltsner | Go to book overview

5
The Race Factor

In the mid 1960's the Legal Defense Fund was ill-prepared to mount a systematic challenge to the procedures employed by the states to impose the death penalty. Its New York staff was still small, spread dangerously thin, and plagued by almost daily civil rights movement crises that required immediate action. What little lawyers' time was available for capital punishment was spent devising, but not implementing, a national abolition strategy or exploring means to prove that capital sentencing for rape was racially discriminatory. For a civil rights organization like the Fund, elimination of racial discrimination was the first priority. The problem that confronted the lawyers here was not changing the law, but assembling the facts so that existing law could be applied and enforced.

One of the purposes behind the Fourteenth Amendment guarantee, adopted in 1868, that the states not "deprive any person of life, liberty, or property, without due process of law," nor deny "the equal protection of the laws" was to ensure that all Americans would be subject to like criminal punishment regardless of race or color. While historians have long debated what Reconstruction Congresses thought about matters such as school segregation, the history of the Fourteenth Amendment shows with relative clarity a desire

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Cruel and Unusual: The Supreme Court and Capital Punishment
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Preface xi
  • 1 - The Fund 3
  • 2 - The Court 20
  • 3 - The Facts of Death 45
  • 4 - The Strategy Unfolds 60
  • 5 - The Race Factor 73
  • 6 - Moratorium 106
  • 7 - Simon's Frolic 126
  • 8 - Maxwell 149
  • 9 - Boykin 168
  • 10 - Haynsworth, Carswell, and Blackmun 186
  • 11 - Maxwell (Continued) 199
  • 12 - Taking Stock 214
  • 13 - If the Death Penalty Is to Be Retained at All 229
  • 14 - Powell and Rehnquist 253
  • 15 - Closing In 266
  • 16 - Cruel and Unusual 286
  • Index 329
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