Capital Punishment on Trial: 'Furman v. Georgia' and the Death Penalty in Modern America

UT prof David Oshinsky weaves a tight and compulsively readable account of the intersection of morality and legality in the jurisprudence of capital punishment

Book Review

Capital Punishment on Trial: 'Furman v. Georgia' and the Death Penalty in Modern America

by David M. Oshinsky
University Press of Kansas, 160 pp., $14.95 (paper)

In 1972, a fractured U.S. Supreme Court delivered a 5-4 opinion that shocked the country: The death penalty, as then practiced by the states, violated the Constitution's ban on cruel and unusual punishments. Capital punishment wasn't per se unconstitutional, but its use by the various states was arbitrary and capricious, the court concluded in a set of opinions that ran a whopping 232 pages regarding a case involving William Furman, who'd shot and killed a homeowner (accidentally, Furman said) during a burglary in 1967. The case, one of four that, taken together, became known as Furman v. Georgia, led to a de facto four-year moratorium on all executions in the U.S. Before the end of the decade, however, states would revise their laws, tightening the circumstances under which death could be meted out, and the machinery of capital punishment would start up again.

In his new book, Pulitzer Prize-winning author and University of Texas history professor David Oshinsky weaves a tight and compulsively readable account of the intersection of morality and legality in the jurisprudence of capital punishment. He details the use of the death penalty in the U.S., from the nation's founding through the Furman decision and beyond, and skillfully uses a conversational narrative style to detail the modern questions that still plague the death penalty system.

Indeed, the moratorium that was essentially forced on the states by the Furman decision took not long at all to overcome: By 1976 executions had begun again, as the states crafted new statutes they hoped would eliminate the court's previous concerns about arbitrariness. However, just because the death machinery cranked back up – and nowhere more solidly than in Texas, where more than 400 individuals have been put to death since the state resumed executions in 1982 – doesn't at all mean that the problems associated with the system have disappeared. In fact, it seems, just the opposite is true, as serious questions persist about its practice and effect: Is the death penalty a deterrent? Is the system racially biased? Is the death penalty system stacked in favor of the state in cases where the ultimate punishment is sought? These are among the questions that have haunted the system since its inception, Oshinsky writes, and that despite the reinstatement of the death penalty, are very much still open legal questions.

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KEYWORDS FOR THIS STORY

capital punishment, death penalty, David Oshinsky, William Furman, Furman v. Georgia

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