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The Capital Gang

Publication Date: 
April 16, 2008
Dahlia Lithwick

Professor Jeffrey Fisher is referenced in Dahlia Lithwick's Slate commentary about Kennedy v. Louisiana:

Fisher, Kennedy's lawyer, gamely opens with the observation that Louisiana's effort to "reintroduce" the death penalty for rapists violates the "long-standing national consensus against it." It also offends a line of cases that require states to very narrowly define the class of offenders eligible for the death penalty.

...Fisher lays claim to a 1977 case, Coker v. Georgia, in which the high court prohibited capital punishment for the rape of an "adult" (the victim was 16). Coker has been interpreted as barring capital punishment for all rape. ... Fisher says if you count the two justices in Coker who opposed the death penalty under every circumstance, there were, in fact, seven votes for that proposition.


Upon Scalia saying "you can't count the two justices who oppose all capital punishment as opposing capital punishment for rapists," Fisher replies, "I'm not aware of any wrinkle in this court's jurisprudence that says that if a justice is too far out of the mainstream, then their vote is discounted."

Fisher says that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it's clear the social consensus is trending away from the death penalty.

Answering Scalia's question if Fisher thinks "treason is worse than child rape," Fisher replies that all the professional sex-assault groups and social workers have lined up against making child rape a capital crime.