ABSTRACT

T H I S chapter examines the U.S. Supreme Court’s (“the Court’s”) pre-modern death penalty jurisprudence.1 Pre-modern death penalty jurisprudence refers to the Court’s pre-1968 death penalty opinions; modern death penalty decisions refer to the Court’s death penalty opinions from 1968 through 2015. Although much has been written about the Court’s modern death penalty jurisprudence, most of its pre-modern decisions have been relegated to the dustbin of history. This is unfortunate because, as William Shakespeare famously observed, “What is past is prologue.” Shakespeare’s quote is particularly germane to this analysis because the Court’s death penalty jurisprudence is supposed to follow the doctrine of stare decisis, under which courts are to be guided by earlier judicial decisions (precedents) when the same points are raised again in subsequent litigation. Thus, an understanding of the Court’s pre-modern death penalty jurisprudence provides insight into the Court’s modern death penalty jurisprudence because the modern decisions are to some extent based on precedents or the rules of law they established.2 An examination of the pre-modern Supreme Court death penalty cases also provides a window into the more egregious practices of the pre-modern death penalty era. Finally, familiarity with pre-modern death penalty jurisprudence is important because, as the philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”