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May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 at 11:09 AM | Permalink



If we start to question how the courts should determine the "proper scope of the death penalty," (page 6) where is the stopping point? The book references '45' as the number of years the Supreme Court has done this, a reference to Furman, but it goes back beyond that.

This is partially a matter of the people at large giving power to the courts. The people vote for those who appoint and confirm federal judges. In fact, some of the state judges doing this sort of thing are directly elected or open to removal. And, it isn't limited to any one area. It is a wider debate and this is seen by the justices as a whole open to strong judicial review, even if they dispute over details.

A true minimalist these days seems rather rare. This includes the tendency in criminal matters for the Supreme Court to want to set forth rather specific rules on a diverse number of questions, again not limited to the death penalty. So, the debate is worth having, but let's understand the scope.

Posted by: Joe | May 25, 2017 11:30:51 AM

Are the Steikers stupid lawyers? They do not seem to understand.

Supreme Court death penalty policy is to minimize it, but not to ban it. They have finely tuned the death penalty to defraud the tax payer of $billions for the appellate business, for the foreseeable future. They are pro-lawyer employment rent seekers. That theory explains all anomalies and mysteries of death penalty jurisprudence.

Posted by: David Behar | May 25, 2017 8:31:05 PM

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