Condemned by Substance and Process: A Comment on <i>“Doubly Condemned”: Adjustments to the Crime and Punishment Regime in the Late Slavery Period in the British Caribbean Colonies</i> and <i>“Under the Present Mode of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure in the Trials of Slaves in Antebellum Louisiana</i>

The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by the state are under fire.

The resolution of criminal cases by jury verdict, especially unanimous jury verdict, is questioned. The right of those convicted to appeal their sentences is viewed as a hindrance to certainty of punishment, and their right to challenge the terms of their punishment is viewed as a hindrance to the effectiveness of punishment as well as to societal retribution. Calls for harsh sentences resound, including those for the death penalty and for corporal punishment.