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August 14, 2012

"Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment"

The title of this post is the title of this latest and greatest must-read piece about the state and future of the US death penalty coming from Professors Carol Steiker and Jordan Steiker. Here is the abstract:

In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade.  Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization.

We contrast the effects of the death penalty reforms of prior generations -- such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods -- with the reforms of the modern era of constitutional regulation.  The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence.  We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious.  We explore the implications of these insights for two broader debates -- the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.

August 14, 2012 at 09:40 AM | Permalink

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Comments

What about the Court's entrenching rent seeking hyperproceduralism, and robbing the tax payer, with the death penalty as a pretext? The lawyer swims in the sewer unaware of the surrounding, never mind the air and land above. The criminal cult enterprise that is the lawyer profession has gotten hold of the three branches of government. We pity Mexico, Italy or Russia for official corruption. Here, history's biggest, most powerful criminal syndicate has total control of government and runs it solely for its own interest.

Posted by: Supremacy Claus | Aug 14, 2012 9:52:27 AM

SC,

accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

Bad as the CCE might be, I believe we are still well within the tolerable evils range.

Posted by: Soronel Haetir | Aug 14, 2012 12:38:43 PM

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