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Reflections on a Quarter-Century of Constitutional Regulation of Capital Punishment, 30 J UIC Law Review Volume 30 Issue 2 Article 5 Winter 1997 Reflections on a Quarter-Century of Constitutional Regulation of Capital Punishment, 30 J. Marshall L. Rev. 399 (1997) Joseph Bessetre Stephen Bright George Kendall William Kunkle Carol Steiker See next page for additional authors Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Human Rights Law Commons, Jurisprudence Commons, Legal History Commons, Legal Profession Commons, Legislation Commons, and the State and Local Government Law Commons Recommended Citation Joseph Bessetre et al., Reflections on a Quarter-Century of Constitutional Regulation of Capital Punishment, 30 J. Marshall L. Rev. 399 (1997) https://repository.law.uic.edu/lawreview/vol30/iss2/5 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. Reflections on a Quarter-Century of Constitutional Regulation of Capital Punishment, 30 J. Marshall L. Rev. 399 (1997) Authors Joseph Bessetre, Stephen Bright, George Kendall, William Kunkle, Carol Steiker, and Jordan Steiker This article is available in UIC Law Review: https://repository.law.uic.edu/lawreview/vol30/iss2/5 PANEL DISCUSSIONS REFLECTIONS ON A QUARTER-CENTURY OF CONSTITUTIONAL REGULATION OF CAPITAL PUNISHMENT JOSEPH M. BESSETrE* STEPHEN B. BRIGHT** GEORGE H. KENDALL*** WILLIAM J. KUNKLE, JR.**** CAROL STEIKER***** JORDAN STEIKER****** * Mr. Bessette is the Alice Tweed Tuohy Associate Professor of Govern- ment and Ethics at Claremont McKenna College. He has also served as Dep- uty Director and Acting Director of the Bureau of Justice Statistics in the U.S. Department of Justice and as Director of Planning, Training, and Manage- ment in the Cook County State's Attorney's Office in Illinois. Mr. Bessette has taught at the University of Virginia, Catholic University of America, the University of Chicago, and Georgetown University. From 1990-93, he served on Chicago Mayor Richard Daley's Blue Ribbon Panel of Police Hiring and Promotion ** J.D., University of Kentucky, 1974; B.A., University of Kentucky, 1971. Mr. Bright was Visiting Lecturer at the Harvard Law School and is currently the Director of the Southern Center of Human Rights in Atlanta, Georgia. *** J.D., Antioch School of Law, Washington, D.C., 1979; B.A., University of Richmond, 1974. Mr. Kendall has served as Staff Attorney for the ACLU Eleventh Circuit Capital Litigation Project in Atlanta, Georgia. Currently, Mr. Kendall works with the NAACP Legal Defense and Educational Fund as a staff attorney in its capital punishment project. In 1987, Mr. Kendall received the Stuart Miller Memorial Award and the ACLU of Georgia Bill of Rights Award. In 1992, he was on of four attorneys honored by the NAACP Legal Defense Fund for service to advance the civil and human rights of all Ameri- cans, and in 1995 he was awarded the New York State Defenders Association Service of Justice Award. **** J.D., Northwestern School of Law, 1969; B.A., Northwestern Univer- sity, 1963. Mr. Kunkle is currently a partner at Cahill, Christian & Kunkle, Ltd., in Chicago. He has served as First Assistant's State's Attorney, Chief Deputy State's Attorney, Deputy State's Attorney of Cook County, Cook County State's Attorney and Assistant Public Defender in the Cook County Public Defender Office. Mr. Kunkle has gained notoriety in such roles as Chief Trial Prosecutor in the prosecution of John Wayne Gacy and as Special Prosecutor to investigate the handling of the Jeanine Nicarico murder case. ***** J.D., Harvard Law School, 1986; B.A., Harvard-Radcliffe College, 1982. Ms. Steiker was President of the Harvard Law Review and is currently an As- sociate Professor of Law at Harvard. After clerking for Judge J. Skelly Wright of the D.C. Circuit Court of Appeals and Justice Thurgood Marshall of the Unites States Supreme Court, Professor Steiker practiced law as a staff attorney with the D.C. Public Defender Service. As a public defender, she represented indigent criminal defendants at all stages of the criminal process. ****** J.D., Harvard Law School, 1988; B.A., Wesleyan University, 1984. Mr. Steiker is the Regents Professor at the University of Texas School of Law. He clerked for Justice Louis Pollak in the U.S. District Court in the Eastern District The John Marshall Law Review [30:399 MR. RUEBNER: Good morning. Welcome to The John Mar- shall Law School. I'm Ralph Ruebner, the Chair of the Braun Committee and a member of faculty of the law school. I bring to you greetings on behalf of the Dean, Robert Gilbert Johnston, who is heading the academic commission of The John Marshall Law school professors in China. I wish to acknowledge the valuable service of the Braun Committee members. They are Susan Brody, Donald Beschle, Carol Robinson, Walter Kendall, Timothy O'Neill, Arthur Sabin, George Trubow, Lawrence Glick and Mr. Joseph Hammond. I thank you for the dedicated work. I would like to thank Professor Julie Spanbauer, the Vice- Chair. of the Braun Committee. I recognize her singular efforts and contributions. She has attended to all of the details of the aca- demic components of this conference with great skill and dedica- tion. We also welcome the Niles Township High School Seminar for Scholars. It is my pleasure now to introduce the Chair of our program, Professor Julie Spanbauer. MS. SPANBAUER: Thank you, Ralph. Good morning. Wel- come to everybody. It has been nearly a quarter of a century since the 1972 United States Supreme Court, in Furman v. Georgia, in- validated every death penalty scheme in the nation. Some be- lieved that this decision would mark the end of capital punishment in America. It did not. Instead, many states quickly passed new death penalty statutes, some of which, as early as 1976, were up- held as constitutional by the United States Supreme Court. Thus a new era in the American experience with capital punishment was underway. Yet as we approach the year 2000, no one seems satisfied with the current state of the law. Those who support the death penalty complain of endless ap- peals and intolerable delay from the time of conviction to execu- tion. The critics, however, argue that the death penalty is imposed inordinately on minorities and the indigent. The tension existing in the death penalty area is exemplified in the career of Justice Blackmun, who began his tenure on the Court by dissenting in Furman when he declared that he yielded to no one in the depth of his personal "distaste, antipathy and, indeed, abhorrence for the death penalty with all its aspects of physical distress, fear and moral judgment exercised by finite minds." He, however, included that as a matter of history, law or constitutional pronouncement, the death penalty was an appropriate punishment. Justice Blackmun ended his career when in 1994 he made a complete turn around. He declared that "the death penalty re- mains fraught with arbitrariness, discrimination and mistakes. Experience has taught us that the constitutional goal of eliminat- of Pennsylvania, and for Justice Thurgood Marshall in the United States Su- preme Court. Professor Steiker is currently co-director of the Capital Punish- ment Clinic at the University of Texas Law School. 1997] ConstitutionalRegulation of CapitalPunishment ing arbitrariness and discrimination from the administration of death can never be achieved without compromising an equally es- sential component of fundamental fairness in individual sentenc- ing." The purpose of this conference is to explore the current state of the death penalty in the United States, including the most re- cent developments. Most notably, Felker v. Turpin, a 1996 United States Supreme Court decision which upheld provisions of the Anti-Terrorism and Effective Death Penalty Act, a federal con- gressional Act with limited habeas corpus appeals. We have brought together those who work within the death penalty system: professors, prosecutors, defense lawyers and judges. In addition, other commentators including philosophers, theologians and con- cerned citizens. This conference promises to be an opportunity for a fruitful exchange of ideas on capital punishment in America: where we have been, where we are and where we are heading. To initiate this discussion, Professor Timothy O'Neill of The John Marshall Law School will serve as moderator for the morning panel. Prior to teaching, Professor O'Neill spent six years in the Cook County Public Defender's Office. He received an A.B. from Harvard University and his J.D. from the University of Michigan. He is a member of the faculty of the National Judicial College. His articles on criminal law have appeared in the New York Times and Chicago Tribune. He also writes a monthly column for the Chi- cago Daily Law Bulletin on criminal law issues. Since 1989, Pro- fessor O'Neill has served as a reporter to the Illinois Supreme Court Committee on Pattern Jury Instructions in criminal cases. I give you a wonderful colleague, Professor Timothy O'Neill. MR. O'NEILL: Good morning and welcome to the symposium. As Julie mentioned, in 1972 Furman v. Georgia struck down all death penalty schemes in America, at that time invalidating 629 death sentences in one opinion. Yet during the three years after Furman, well over thirty states passed new death penalty schemes. In 1976, the United States Supreme Court validated death penalty schemes in three of the five cases that they looked at. The first execution of an inmate after Furman who contested his sentence was John A. Spenkelink in 1979, in Georgia. Since that time, the popularity of the death penalty in Amer- ica appears actually to be on the upswing.
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