10 September 2019

JOURNAL: American Journal of Legal History XIX (2019), No. 3 (Sep)

(image source: Cambridge Core)

‘To Stay the Murderer’s Hand and the Rapist’s Passions, and for the Safety and Security of Civil Society’: The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans  (Jeffrey S. Adler)
This essay examines capital punishment in New Orleans between 1920 and 1945. Building on a quantitative analysis of case-level data culled from police, court, and prison records, it explores the emergence of racial disparities in death-penalty sentencing and charts the increasing use of capital punishment as a mechanism of racial control. The paper focuses on four surprising and counter-intuitive patterns in the application of the death penalty. First, shifts in the use of capital punishment during this era bore no connection to patterns of violent crime. Second, changes in death-penalty sentencing were only loosely related to overall trends in homicide conviction. Third, and most surprising, Orleans Parish jurors, particularly during the 1920s, sent white killers to the gallows at a higher rate than African American killers. And fourth, the analysis of case-level records reveals dramatic shifts in death-penalty sentencing during the 1930s, particularly the development of a pronounced racial disparity in the application of capital punishment. Prosecutors also exploited the threat of capital charges to secure guilty pleas from African American suspects, and thus changes in death-penalty sentencing contributed to racial disparities in incarceration. In short, this micro-analysis helps to explain when and why the death penalty became a core component of Jim Crow criminal justice.
American Treatise Writers and the Nineteenth-Century Debate on Marriage with a Deceased Wife’s Sister in Transatlantic Context (Angela Fernandez)
The question whether a man could marry the sister of his deceased wife (or whether a woman could marry the brother of her deceased husband) sounds quaint to modern ears. Was this really ever thought to be incest? Yes, it was considered incest by affinity, that is, as a result of a relationship between the parties having been created by marriage, as opposed to incest by consanguinity caused by a blood relationship. Incest by affinity had been prohibited under canon law already long before the time of King Henry VIII, with whose marriages (and their annulments) it was closely associated.1 The status of affinity incest marriages created much vexation in...
The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900
In this article a comparative historical analysis is given of the development of the criminal law of evidence between 1750 and 1870 in, on the one hand, English law and, on the other hand, in the continental jurisdictions of France, Germany and the Netherlands. The main argument is that, although there were significant differences, there were also important similarities in the development of the criminal law of evidence among these jurisdictions that so far have largely gone unnoticed. The article focuses on the ideas underlying the reform of the criminal law of evidence. It will be argued that there were in particular two important ideological changes in the seventeenth and eighteenth centuries that shaped the reform of the criminal law of evidence. For lack of a better term, these developments are called the ‘political-constitutional discourse’ and the ‘epistemological discourse’. The epistemological change consisted of the adoption of a probabilistic conception of the certainty that was required in criminal cases. The term ‘political-constitutional discourse’ is meant to designate the general process of rethinking the relationship between the state and its citizens that took place between the seventeenth and nineteenth centuries.
 Book reviews:

  •  Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America  (Kyle G. Volk)
  •  Whitman, James Q. Hitler’s American Model: The United States and the Making of Nazi Race Law  (Joseph A. Ross)
  •  Elizabeth Stordeur Pryor, Colored Travelers: Mobility and the Fight for Citizenship before the Civil War (Kristin O'Brassill-Kulfan)
(read more on Cambridge Core)

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