by David M. Oshinsky. Kansas: University Press of Kansas, 2010. 160pp. Cloth $29.95. ISBN: 9780700617104. Paper $14.95. ISBN: 9780700617111.

Reviewed by Zachary Baron Shemtob, Department of Law and Police Science, John Jay College of Criminal Justice. Email: Baronshemtob [at]


In CAPITAL PUNISHMENT ON TRIAL Pulitzer Prize-winning scholar David M. Oshinsky offers a compact yet richly detailed account of the United States Supreme Court’s tortuous struggle with the death penalty. While this work is well researched and capably written, it feels quite rushed; Dr. Oshinsky covers an exhaustive amount of material in only one hundred and twenty five pages of text, and matters of primary importance thus go critically underexplored. Further, the author ably synthesizes a great deal of complex material, but adds little novel information to a long polarizing debate. Oshinsky therefore provides an engaging but ultimately limited primer for those interested in this contentious and exhausting issue.

Oshinsky begins his narrative with the case of William Henry Furman, an African-American Georgian sentenced to death in 1968 for the crime of felony murder. As Furman’s case soon made clear, while the country was no stranger to the death penalty, capital sentencing standards varied tremendously: While some states provided a bifurcated [*221] trial, others relied solely on mandatory sentencing or a convoluted hybrid of the two. This was made no clearer by the Supreme Court, which had only considered a handful of capital cases throughout its history, and provided no indication of whether uniform standards were either constitutionally necessary or even implicitly desired.

The Court’s 1972 decision in FURMAN v. GEORGIA, that capital punishment’s arbitrariness made it both cruel and unusual, failed to clarify the death penalty’s constitutional status. Even more troubling was the decision’s legal ambiguity. Consisting of nine separate opinions and totaling an unprecedented two hundred and thirty two-pages, death penalty scholar Robert Weisberg (1983) has aptly described FURMAN as “a badly orchestrated opera, with nine characters taking turns to offer their own arias” (p.315). The plurality decision, led by Justices Douglas, Stewart, and White, offered particularly little in the way of clarity. While Douglas decried the penalty’s imposition on the poor and socially disenfranchised, Stewart and White opposed its seeming randomness of application. Further, though the plurality was clearly bothered by capital punishment’s random enforcement, it failed to recommend any specific ways in which to reduce or eliminate its now unconstitutional capriciousness.

Spurred by the Court’s indecisiveness, the states soon took the matter into their own hands, and within a matter of months passed thirty-nine capital statutes. While the vast majority of state legislatures implemented a bifurcated trial (separating the guilt and sentencing phases) accompanied by some sort of higher court review, a number of states chose a seemingly simpler route: not only to restore the death penalty, but automatically mandate it for certain offenses. These tribulations reached a head in GREGG v. GEORGIA, decided only four years after FURMAN. Using the previous case as precedent, the Court determined that, although bifurcated trials adequately appeased their earlier concerns, mandatory sentencing was constitutionally archaic. As Oshinsky concisely summarizes, “the Court had resolved the dilemma between individuality (assessing the unique circumstances surrounding each case) and uniformity (requiring a consistent standard of punishment for everyone) in favor of the former. The death penalty was legal once again” (p.72).

The remaining pages of Oshinsky’s work trace the convoluted consequences of GREGG, and the Supreme Court’s seeming inability to construct a uniform and fair method of capital sentencing. The author focuses in particular on the case of William McClesky, an African-American sentenced to die in the spring of 1978 for fatally shooting a White police officer. While McClesky’s guilt was rarely in question, the defendant’s attorney argued that Blacks with White victims were disproportionally more likely to be executed, using a comprehensive and rigorous study to support his claims of structural discrimination. While Justice Powell’s majority decision in MCCLESKY v. KEMP (1987) did not dispute this contention, a failure to show racial discrimination in this specific case was nevertheless determined to render McClesky ineligible for leniency. Oshinsky also details some victories for death penalty abolitionists, such as 2002’s ATKINS v. VIRGINIA, where capital punishment was deemed unconstitutional for the mentally retarded, and 2005’s ROPER v. SIMMONS, where the death penalty was struck for those having committed their offense when under the age of eighteen.

One of Oshinsky’s final passages focuses on the evolutionary jurisprudence of Justice Harry Blackmun, which comes to embody the Court’s struggles with capital sentencing as a whole. Although an initial advocate of judicial restraint, the justice became increasingly disillusioned with the quest to develop adequate sentencing standards. Refusing to further “tinker with the machinery of death,” Blackmun eventually proclaimed himself “morally and intellectually obligated to concede that the death penalty experiment” had “failed” (p.109). And although Oshinsky is unwilling to speculate on capital punishment’s potential demise, he pointedly cites the justice’s belief “that it will eventually arise” (p.110).

Interestingly, the book closes on a more ambiguous note, centered once more on the pathetic figure of William Henry Furman. Released from prison in 1984, this “death penalty survivor” worked a number of random jobs and collected government assistance until charged and convicted of burglarizing a home in 2004 (p.125) and sentenced to twenty years. Oshinsky highlights the irony of Furman’s fate: that American whose escape from execution so dramatically transformed capital punishment will nevertheless “likely die in prison.” [*222]

CAPITAL PUNISHMENT ON TRIAL is well written and carefully researched, and even when the author occasionally digresses, it is tightly structured and convincingly argued. Few readers will leave the book feeling complimentary of the Supreme Court’s past and present approach to capital sentencing, and even fewer without a firm grasp of this difficult subject matter. Perhaps most impressive is the author’s synthesis of American history, constitutional law, and individual stories, and his impressive agglomeration of these varying discourses. Oshinsky’s ability to do so without resorting to sweeping generalizations and airy summaries is equally laudable.

Oshinsky is perhaps strongest when describing specific cases and relating them to the life and (very often) death of the defendant. He always paints a vivid picture of the racial dynamics in play, and the cruel and almost comical nature of “southern justice.” Often lost in court legalese and conflicting jurisprudence are the actual lives at stake, and the political contingencies upon which they were (and are) spared or sacrificed. And while the author’s own sympathies are undoubtedly abolitionist, he does an admirable job painting both sides of the debate, giving ample time to the death penalty’s more fervent supporters. His focus on Justice Scalia’s jurisprudence is particularly impressive here; rather than mischaracterizing or scoffing at the justice’s open embrace of capital punishment, Oshinsky lets the famously verbose magistrate speak for himself. He also explores the complexity of judicial decision making, from the professed legalism of a Felix Frankfurter to the eventual and reluctant activism of Harry Blackmun.

Yet Oshinsky’s admirable nuance somewhat undermines the book’s larger narrative. It is difficult (if not impossible) to cover the full scope of American capital punishment in slightly over one hundred pages, and the author’s attempt to do so consequently leads to an overload of information. This results in an irritating paradox: I occasionally felt overwhelmed and consequently took a break from reading, but then found it difficult to resume my focus. Further, Oshinsky’s general themes are occasionally obscured by his rich descriptive accounts; the Court’s flawed system of capital sentencing is made abundantly clear, but the deeper reasons for this are often lost in a thicket of detail.

A number of other works have chronicled the same ground and done so in less rushed narratives. Although Stuart Banner’s THE DEATH PENALTY: AN AMERICAN HISTORY (2003) remains the gold standard on this subject matter, Franklin Zimring and Austin Sarat have each penned a number of impressive volumes on the judicial history of the American death penalty. I was also surprised Oshinsky spent so little time discussing more recent cases, an area that remains to be fully analyzed and explored, and where his careful scholarship is sorely needed. BAZE v. REES (2008) was barely covered, for example, and KENNEDY v. LOUISIANA (2008) mentioned only in passing.

As a final note, and one outside of the author’s purview, I must voice my displeasure with the Landmark Law Cases and American Society’s decision to present a biographical essay in lieu of formal citations. While visually pleasing [*223] and reportedly cost-effective, this format/template also makes it substantially more difficult to trace an author’s sources and reference material. The editor’s further invocation of precedent, or that a number of “highly regarded and widely consulted series” have also followed this course, seems inadequate justification to sacrifice scholarly detail for aesthetic appeal (p.131). As Oshinsky makes clear by way of FURMAN and GREGG, not all precedents are necessarily worth following.

Despite these deficiencies, I would gladly recommend CAPITAL PUNISHMENT ON TRIAL to anyone seeking a greater understanding of the American death penalty and the Supreme Court. Oshinsky has written a compact and rewarding synopsis of this frustrating but critical issue. While he brings nothing particularly new to the table, his careful scholarship and breadth of detail paint a troubling picture of the high court’s convoluted capital jurisprudence.

Banner, Stuart. 2003. THE DEATH PENALTY: AN AMERICAN HISTORY. Massachusetts: Harvard University Press.

Weisberg, Robert. 1983. “Deregulating Death.” SUPREME COURT REVIEW 305-395.

ATKINS v. VIRGINIA, 536 U.S. 304 (2002).
BAZE v. REES, 553 U.S. 35 (2008).
FURMAN v. GEORGIA, 408 U.S. 238 (1972).
GREGG v. GEORGIA, 428 U.S. 153 (1976).
KENNEDY v. LOUISIANA, 128 S.Ct. 2641 (2008).
MCCLESKEY v. KEMP, 481 U.S. 279 (1987).
ROPER v. SIMMONS, 543 U.S. 551 (2005).

© Copyright 2010 by the author, Zachary Baron Shemtob.