[Deathpenalty] death penalty news----USA----New scholarship on the conditions that lead to abolition in 1972

[Rick Halperin]

Re:  a new law review article on the conditions that preceded Furman in
1972.   The article is by Corinna Lain (Univesity of Richmond Law) was
published to SSRN "Furman Fundamentals" and is scheduled to be published
in the  Washington Law Review, _http://ssrn.com/abstract=926401_
(http://ssrn.com/abstract=926401)

For the first time in a  long time, the Supreme Court's most important death
penalty decisions all have  gone the defendant's way. Is the Court's
newfound willingness to protect  capital defendants here to stay? Or is
it a passing fancy that will dissipate  in less hospitable times? At
first glance, history allows for optimism. Furman  v. Georgia, the 1972
landmark that invalidated the death penalty, provides a  seemingly
perfect example of the Court's ability and inclination to protect capital
defendants when no one else will. Furman looks countermajoritarian,
scholars have claimed it was countermajoritarian, and
even the Justices saw themselves as playing a heroic, countermajoritarian
role in the case. But the  lessons of Furman are not what they seem.

Rather than proving the Supreme  Court's ability to withstand majoritarian
influences, Furman teaches the  opposite - that even in its more
countermajoritarian moments, the Court never  strays far from dominant
public opinion, tending instead to reflect the social  and political
movements of its time. This Article examines the historical  context of
Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to highlight
a fundamental flaw in the Supreme Court's role as protector of  minority
rights: its inherently limited inclination and ability to render
countermajoritarian change. In theory, the Court might protect unpopular
minorities, but in practice it is unlikely to do so unless a substantial
(and  growing) segment of society supports that protection. Even then,
Furman reminds us that the Court's "help" may do more harm than good.

If the past truly is a prologue, Furman portends that the Court's
current interest in restricting the death penalty will not last forever.
Like the fair-weather friend, the Court's protection will likely be there
in good times but gone when needed the most.

(see:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926401)