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xvii Introduction: Murder, the Rule of Law, and the Tale of the Little Red Hen The test of the integrity, the authority of a society, its core identity, is its legal system: the government’s ability to control violence, to impose order over lawlessness. There is killing among all men, in all societies. War seems to be endemic. Whenever men have enough to eat, they kill one another, hoard wealth, and build larger, more intricate and expensive weapons, what we now call weapons of mass destruction. The old ways of killing are not good enough for modern societies, although the old ways were sufficient for the most recent genocides in Africa and Asia. The new technologies have raised the stakes for diplomacy and statecraft, and instant communication and the universal spread of old and new weapons offer fresh challenges to the establishment of the rule of law. Or perhaps that is just how it seems to us, at this time. The essays in this book are about the punishment of small-scale murder, old-fashioned murders, garden-variety murders: mostly young men killing other young men in disputes defined by the style of the community and the times, an outburst over a gang symbol; a gun; a car. For the family murders, it is usually men killing their wives or other women over real or imagined issues of sexual domination; or some women killing children; or occasionally women killing men. This is what murder looks like in state courts across the country. It is the revenge murders over a perceived slight or insult, the drunken slashings, the murder during a burglary or robbery, the drive-by shootings, the killings over territory or drugs; the senseless beating to death of a child or woman. This is lowercase justice. State courts in America do not ordinarily address issues of genocide or civil war. They do thrive on drama: the drama of a capital prosecution; the drama of seeing an accused who is facing the death penalty; the drama of the witnesses; the drama of waiting for xviii INTRODUCTION the jury verdict; the drawn-out drama of the appeals; and then the final vigils on both sides as the death penalty is administered, or not. Where did capital punishment come from? The first criminal laws enacted by the colonies, for example, the Crimes Act of March 18, 1796, in New Jersey , were simply modeled upon the British common and statutory law which provided death as the penalty for all felonies, with the benefit of clergy.1 So inequity in the application of punishment in the common law dates from our earliest heritage. When New Jersey and Illinois and Connecticut passed statutes saying the common law of Great Britain was in effect in those states, they enacted the death penalty.2 This book looks at how capital punishment has played out recently in a few state jurisdictions over the recent past. For fifteen years I was a defense attorney in New Jersey helping to develop a system for the proportionality review of capital cases before the New Jersey Supreme Court.3 Basically, proportionality review asks whether this death sentence is imposed fairly or proportionately in comparison to the sentence in other murders in the same jurisdiction where the death penalty was imposed or not imposed. Several of these essays describe how proportionality review evolved or was implemented in New Jersey. It was a long commitment by a principled and intellectually powerful court to the meaningful review of the capital cases which came before it after reenactment of the death penalty in New Jersey in 1982. No other state high court has made that commitment. The U.S. Supreme Court has steadily backed away from its previous willingness to find constitutional infirmity in the arbitrary and capricious application of the death penalty by the states. In 1995 I came to Illinois and thus was witness to an extraordinary development in capital punishment jurisprudence, as is described in several of these chapters. The commutation of 167 death sentences by then Governor George Ryan was unprecedented in the history of American law. Fittingly, it was announced in Lincoln Hall at the Northwestern University School of Law. It would not have happened without the way being paved by years, decades of work by lawyers, faculty members at many universities, students, journalists, nonprofit groups, and so many others in Illinois and around the country. A groundswell of support for the commutations crested at a propitious moment with the cascading...

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