In a familiar pattern, federal judges ultimately embraced their role as the architects of American sovereignty on the water. As the Monroe administration redoubled its prosecutions of South American privateers, Congress left it to judges to define the legitimate boundaries of maritime violence. The Supreme Court responded by casting doubt on the claims to sovereignty advanced by revolutionary polities, and declaring that privateers were merely pirates, and therefore subject to punishment by all – including the United States. This judicial assertion of legal authority to police the waters of the revolutionary Atlantic was transformative. It helped secure approval of a treaty with Spain that paved the way for decades of territorial expansion in North America, and it presaged increasingly expansive American claims to hemispherical preeminence. Even when federal judges denied their own power to discipline a different category of “pirates” – those who engaged in the slave trade – they did so to uphold sovereign rights that Americans had been asserting since independence. If a nineteenth century American empire was ultimately realized on land, some of its first stirrings were at sea.

In the Feyerabend lecture Kant already presents his claim that the principle of right is a principle of coercion, that is, that the state is authorized to use coercion to counteract an unauthorized violation of universal freedom. Such state use of force is a hinderance of a hinderance to freedom. But how is this coercive power specified in particular circumstances? I examine three extreme cases in which a state might be authorized to use its coercive power against its own citizens to cause their deaths: capital punishment, eminent right in emergencies, and war. This paper will show that Kant offered specific explanations of particular limits to legitimate state power, rejecting different limits offered by Beccaria (capital punishment), Achenwall (eminent right and war), and Vattel (war). These assessments reveal that Kant was of several minds regarding whether in any social contract a citizen could rationally consent to these uses of coercion and whether actual or only hypothetical consent was required. I suggest that only later in the published Doctrine of Right did Kant work out his position consistently.

This chapter examines the Hong Kong government’s practice of giving people up to foreign authorities during 1850–65 on charges of crimes committed at sea. Framed as ‘rendition’, an early version of extradition, this mechanism was used to remove several hundred accused pirates, mutineers, and other criminals of Chinese origin – criminals that officials believed China was better suited to punish. Other seafarers were also given up to France and the United States as the colony sought to take pressure off its overstretched and barely functional courts and prison system. Ideas of British sovereignty and the international law of piracy fuelled this pragmatic policy. Notably, officials believed that maritime crimes should only be tried in Hong Kong if they implicated ‘British interests’, specifically British victims, offenders, or territory. This rationale for jurisdictional restraint reached a controversial zenith in 1861. In the case of the French coolie ship, Ville D’Agen, a Peruvian sailor, Juan Pastor was nearly given up to China despite the absence of any treaty or statutory basis for his rendition.

Rebecca West’s novel of ideas, The Birds Fall Down, responds to the intense debate around capital punishment that took place in the UK after the Second World War. Partly motivated by the International Military Tribunal in Nuremberg, which West attended as a journalist, this debate led to the introduction of the Criminal Justice Bill in 1947 and the establishment of the Royal Commission on Capital Punishment in 1949. Alongside other public intellectuals, West acted as an honorary member of the National Campaign for the Abolition of Capital Punishment, founded in 1955. In such non-fictional works as Black Lamb, Grey Falcon and A Train of Powder, West reflects on the meaning of justice and the appropriateness of punishment for murder, assassination, and crimes against humanity. In The Birds Fall Down, she extends her reflections to the political utility of assassination and the wisdom required to pass judgment on crimes and criminals.

Chapter 3 examines the common belief that those who are accused of crimes, particularly ethnic minorities, are probably guilty of something. The chapter begins by citing bias in news presentations of crime that reinforce the belief that people of color are criminally inclined. The process of criminalizing black and brown life begins early with disparities in discipline in schools resulting in the school-to-prison pipeline. Experiments on the shooting bias as well as actual police shootings is discussed next. The popularity of Stand Your Ground laws codifies white vigilantism. Biases that can enter all aspects of police investigation, criminal prosecution, sentencing, and the death penality are discussed. Experimental research exposing the role that harsh interrogations and false confessions in routing innocent suspects into the criminal legal system is presented as well. Juror behavior and their processing of evidence is also addressed in Chapter 3. The chapter concludes with suggested policy changes to prevent false confession and conviction, and toward more fairness in the criminal legal system.

Chapter Five charts the creation of standardized and uniform bureaucracies managing pardons and scaffolds across British India. Unlike in England when the number of hangings declined during this period, the colonial state would continue to hang Indians in high numbers until independence. In a bloody context, I ask when did the state pardon or execute, and how? As the chapter demonstrates, the codification of criminal law did not initially produce clear rules about what rights were owed to the condemned. As I argue, the gradual development of standardized procedures and rules to manage the petition for mercy and the spectacle of the scaffold emerged in response to constant challenges from convicts and their supporters. The decisive turn away from the public scaffold in certain executions evidenced the abject failure of the state to deploy terror and mercy to cultivate fearful and obedient subjects in the age of Indian nationalism.

This chapter addresses the various legal and psychological factors that affect the decision-making process by which capital jurors reach penalty phase verdicts. Capital jury trials are unique in a number of respects, including the fact that jurors are selected through a special process of “death qualification,” consider a wide range of evidence that would otherwise be excluded in the typical criminal case, and, in the final analysis, must make the morally daunting decision of whether someone lives or dies. Social science research has documented the way that the very process of selecting a jury can affect capital jury decision-making processes, whether and how jurors consider the full range of evidence that is presented to them, the various ways that stereotypes, heuristics, and attributions might bias the sentencing verdicts ultimately rendered, and the “morally disengaging” aspects of the capital trial itself. Future research and policy implications are discussed.

The Supreme Court issued a plurality opinion holding that Ehrlich Anthony Coker’s sentence of death for the rape of an adult woman was “grossly disproportionate and excessive punishment” in violation of the Eighth Amendment. Unlike other cases from the era, which focused on the procedures for administering capital punishment, the Court found the death penalty excessive for the crime of rape regardless of the procedures used to reach that determination. Notably, an amicus brief authored by Ruth Bader Ginsburg, outlining the feminist case against applying the death penalty in cases of rape, did not serve as the basis for the plurality’s reasoning. Instead, the Court adopted rationales that many consider to be patriarchal and patronizing toward women.

The Introduction gives a snapshot of the current status of capital punishment around the globe. It gives current statistics from Amnesty International and describes Amnesty International's anti-death penalty campaign in the 1970s that led to the Declaration of Stockholm, which expressed "total and unconditional opposition to the death penalty." The Introduction describes the divide between retentionist and abolitionist countries, highlighting countries that have outlawed capital punishment in their constitutions or through judicial rulings. After detailing how the death penalty was traditionally seen as something other than torture, the Introduction discusses the law's evolving nature--and how the death penalty is increasingly seen as a torturous and cruel punishment that violates human dignity and fundamental human rights. Noting that death sentences are no longer treated as a "lawful sanction" in many locales, the Introduction describes how the U.N. General Assembly has voted on multiple occasions for a global moratorium on executions. The Introduction summarizes the current state of international law as regards capital punishment and previews the book's content.

This chapter describes the immutable characteristics of capital punishment, which kills people and uses death threats by state actors. Death threats are ordinarily treated as unlawful acts, with threats of impending death treated as psychological torture where a person is helpless to prevent death. The chapter discusses how mock executions and various corporal punishments are already treated as torturous acts, including by laws and legal commentators. After discussing the duty of government officials to protect people, including inmates, from harm, as well as how jurists in multiple jurisdictions have recognized the death row phenomenon (i.e., the suffering associated with prolonged stays on death row), the chapter describes how countries have refused to extradite individuals without assurances that the death penalty will not be sought. The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains a "lawful sanctions" carve-out to the definition of torture, but case law makes clear that lawful sanctions cannot themselves amount to torture. The chapter argues death sentences inflict severe pain and suffering amounting to torture.

The Conclusion summarizes the book's major themes and arguments, concluding that the death penalty has the immutable characteristics and indicia of torture. The Conclusion asserts that capital punishment violates fundamental human rights, including the right to be free from torture. Non-lethal corporal punishments and mock executions have already been prohibited by law, and the Conclusion asserts that capital punishment should be barred by an existing jus cogens norm--the peremptory norm of international law absolutely prohibiting torture--to stigmatize the practice of capital punishment as a torturous one that has no place in the twenty-first century or in law.

Argued October 15, 1986.Decided April 22, 1987.

Rehearing Denied June 8, 1987.

BARNES, J. delivered the opinion of the Court. Powell, J. joined in all but Part II. Rehnquist J. filed a dissenting opinion, in which O’Connor, Scalia, and White joined.

Defendant McCleskey filed a writ of habeas corpus in the Northern District of Georgia challenging a 1979 murder conviction and death sentence imposed in Fulton County, Georgia. The petition, which the District Court and the Eleventh Circuit Court of Appeals denied, questions whether statistical evidence from research studies that strongly suggest racial considerations factor into capital sentencing jury deliberations, provides a basis to determine the petitioner’s sentence was unconstitutional under the Eighth Amendment or Fourteenth Amendment. We now reverse those decisions based on empirical data strongly corroborating a significant risk exists that McCleskey’s sentence involved unconstitutional race discrimination in violation of both the Eighth Amendment and the Fourteenth Amendment.

Selective enforcement and people’s community continued to order offenders and punishments until the bloody end. Widespread defiance during the invasion of Allied forces shook radicals. Himmler had to intervene when security services defied the HSSPF over unsanctioned orders to execute Aryans. Mass arrests and forced evacuations sufficed instead. Mass releases followed as counterattacks relieved pressure. The security services decentralized authority to avoid the same problem during the new year. A regional triumvirate maintained legitimate oversight with joint orders of execution. Punishable offences became death sentences and imprisonment served as a warning. Most Germans were released, and most foreigners were murdered. An epilogue traces how the Gestapo Leader Gerhard Dahmen presented selective enforcement as resistance from within the system during denazification. The main conclusions link this to how a predictable criteria of political reliability grounded in people’s community allowed targeted persecution to be presented as a public good. A mutually reinforcing dynamic of popular support and terror targeting socio-political outsiders legitimized dictatorship.