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New Left Review I/209, January-February 1995


‘Ah got ta tell ya bad days are here. Bad days have come.’Albert French, Billy

Peter Linebaugh

Gruesome Gertie at the Buckle of the Bible Belt

In Furman v. Georgia (1972) the us Supreme Court said the death penalty was arbitrary and capricious as practised by the states. [*] I would like to thank David Trotman, Douglas Hay, Prabhu Mohopatra, Nicholas Rogers, and Carolyn Strange for a York University Toronto conference which considered a spoken version of this essay. I also am grateful for suggestions from Michaela Brennan, Sam Sheppard, George Caffentzis, Robin Blackburn, and Noel Ignatiev. Four years later in Gregg v. Georgia the Court permitted the resumption of the death penalty if the individual states re-wrote their death penalty legislation to remove earlier objections. Since then, the Supreme Court has increasingly expanded the sanction of death. In Ford v. Wainwright (1986) it agreed it was unconstitutional to execute the insane but it failed to provide the states with criteria of insanity. In Thompson v. Oklahoma (1988) it permitted the execution of sixteen-year-olds. In Penry v. Lynaugh (1989) it permitted the execution of mentally retarded people. As the law of capital punishment expanded, the Court increasingly abandoned reason. Moreover it rendered its decisions in tones ranging from the neurotic hauteur of Chief Justice Rehnquist to the lurid snarl of Justice Scalia. In McCleskey v. Kemp (1987) it announced that racial disparities in American justice are inevitable and that their removal from law would lead to too much justice. In Keeney v. Tamayo-Reyer (1992) in deciding that the Federal courts are not required to hold evidentiary hearing when the states did not, the Supreme Court effectively agreed that innocence of the crime committed is not a defence against capital punishment. Most ominously, Herrera v. Collins (1993) held that Herrera might be innocent but nevertheless he could be executed because his trial had been deemed constitutionally correct. The veil of justice has been yanked from the face of power.

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