By Michael A. Foley
Justice Marshall as soon as remarked that if humans knew what he knew in regards to the loss of life penalty, they'd reject it overwhelmingly. Foley elucidates Marshall's declare that basic flaws exist within the implementation of the dying penalty. He courses us throughout the historical past of the ideally suited Court's loss of life penalty judgements, revealing a constitutional quagmire the courtroom needs to navigate to prevent violating the elemental tenant of equivalent justice for all.
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Additional info for Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty
He writes: As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had “conscientious scruples in regard to the infliction of the death penalty for crime” were rightly permitted to be challenged by the Government for cause. A juror who has conscientious scruples on any subject which prevent him from standing indifferent between the Government and the accused and from trying the case according to the law and the evidence is not an impartial juror.
The prosecutor’s responsibility is to represent the people. In theory, the death penalty, as approved by state and federal governments, reflects the will of the people. Governors and presidents sign death penalty legislation into law claiming to represent the will of the people. The will of the people should not be thwarted by jurors who claim that their personal, moral, or religious feelings or beliefs would make it impossible for them to bring in a guilty verdict because the potential punishment is death.
Justice Harold Burton, dissenting, Louisiana ex rel Francis v. Resweber It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.