In 1972, the Supreme Court ruled that capital punishment was being “so wantonly and so freakishly imposed” that it was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” But just four years later, the Court reversed course---ruling that with new procedures in place, states could continue executions without running afoul of the Eighth Amendment. Justice Thurgood Marshall wrote an impassioned dissent arguing that the death penalty is cruel and unusual under any circumstances. After hearing his experiences as a defense attorney in the South, it’s easy to understand why.

Thanks to our guests John Stinneford and Mark Tushnet.

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