Not Wiser after 35 Years of Contemplating the Death Penalty

Studies in Law, Politics and Society, Vol. 42, 2008

65 Pages Posted: 21 Dec 2007


Is the death penalty dying? This autobiographical essay offers observations on the application of capital punishment in three very different legal jurisdictions at three different time periods when, partially by happenstance and partially by design, she was a homicide researcher, a participant and an observer of profound changes in the jurisdiction's application of the death penalty took place.

The first illustrative case is Nigeria in the early 1970's when the federal government's authority and credibility had been badly damaged by a recent civil war. In Nigeria the military government created a parallel legal system to the ordinary criminal justice system. That parallel legal system could and did order especially harsh and summary penalties, including public executions. Public executions were a visible and highly symbolic way for the State to announce it had established civil rule. There was no public debate and little or no public dissent expressed or allowed.

The second example is New Jersey in the 1980's when capital punishment was reenacted by the legislature in 1982 after decades of its absence. The Supreme Court of New Jersey responded to the legislative reimposition of capital punishment by establishing new, highly detailed and technical due process procedures the result of which was: no executions have occurred in New Jersey as of November, 2006, and few persons have been sentenced to death or have had their death sentences upheld by the state high court.

The third illustrative example is the extraordinary commutation of 167 death sentences and four pardons, the emptying of the Illinois death row, by departing Governor George Ryan in January of 2003. That dramatic and unprecedented commutation did hot happen in a political vacuum. In addition, a set of unpredictable cases, some long in preparation and others not, revealed in a relatively compressed time period that thirteen men on death row in Illinois were innocent, or wrongfully convicted, or both.

And finally these illustrative cases are compared with the surprisingly successful, recent, live challenges to the entire system for implementing capital punishment in the United States: the lethal injection cases. This procedural challenge crosses federal and state jurisdictional lines and threatens to bring to a halt all executions in the United States without raising any legal challenges to the death penalty itself with regard to the manner or constitutionality of its imposition.

Suggested Citation

Bienen, Leigh Buchanan, Not Wiser after 35 Years of Contemplating the Death Penalty. Studies in Law, Politics and Society, Vol. 42, 2008, Available at SSRN:

Leigh Buchanan Bienen (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL

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