Jeffrey L. Kirchmeier's "Imprisoned by the Past"

Jeffrey L. Kirchmeier is a Professor of Law at the City University of New York School of Law. He is the author of several law review articles on issues including criminal procedure, constitutional law, U.S. Supreme Court jurisprudence, and capital punishment.

Kirchmeier applied the “Page 99 Test” to his new book, Imprisoned by the Past: Warren McCleskey and the American Death Penalty, and reported the following:

Imprisoned by the Past examines the history of the U.S. death penalty from colonial times to modern day, connecting that history to the case of Warren McCleskey where the Supreme Court considered how race affects capital sentencing. In that case, the Court held that even if there were a significant risk that the race of the victim affected death sentences, that finding did not violate the U.S. Constitution.

McCleskey’s case played a pivotal role in the history of capital punishment for a number of reasons. For example, the Court’s decision remains a landmark example of the country’s failure to address race issues.

Another reason McCleskey’s case is a centerpiece of the book is that it was a turning point for how lawyers, judges, activists, and others view capital punishment. His 1987 case was the last time that the Supreme Court realistically might have ended the death penalty, following after the Court struck down the death penalty in 1972 and then upheld new death penalty statutes in 1976.

Page 99 of the book in Chapter 8 (“A New Era”) discusses those 1976 cases where the Court allowed the death penalty to return. In a sense, page 99 does not reveal the expanse of Imprisoned by the Past because the book traces the history of the American death penalty across centuries as well as the role that race plays in the criminal justice system.

But on the other hand, page 99 does reveal a core theme of the book. Gregg v. Georgia and other cases on page 99 discuss the Court’s struggles with the arbitrariness of the system. The Gregg Court considered whether new statutes had eliminated the arbitrariness of distinguishing those sentenced to death from those sentenced to prison. And the Court found that some of the new statutes had satisfactorily curtailed the arbitrariness.

More than a decade later, though, McCleskey’s case challenged that conclusion. Although McCleskey lost his case, his evidence later affected several justices who had decided Gregg v. Georgia. By 2008, three of the justices who voted to uphold the death penalty in Gregg had changed their minds, a swing that would have eliminated the death penalty in the U.S. had they changed their minds earlier. But it took decades of evidence, including the studies presented in Warren McCleskey’s case, to persuade them -- too late -- that the death penalty experiment had failed.

Learn more about Imprisoned by the Past: Warren McCleskey and the American Death Penalty at the Oxford University Press website.

--Marshal Zeringue