« Former LA Sheriff gets three years in federal prison after obstruction convictions connected to corruption scandal involving county jails | Main | Some more notable reactions to the Sessions Memo »

May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 at 01:57 PM | Permalink


“Capital punishment will be abolished, because the trend is inevitable”
Angus Maude, UK Tory MP, 1956

Posted by: Claudio Giusti | May 13, 2017 2:04:49 PM

In hindsight, a 5-4 opinion based on Justice White saying the death penalty wasn't used enough (an ironic approach) and at least one older liberal that would be likely replaced by Nixon (turned out to be Ford) was not quite "nearly eliminated."

The review is 50 pages. Almost seems silly to read the 400 page book, especially since I'm sure it will overlap with other histories!

As to the death penalty going out by a court case -- well, not yet. Furman v. Georgia invited Gregg v. Georgia -- the deciding votes spoke of arbitrariness, which invited a regulatory system. Since then, the death penalty has been chipped away, a frontal attack has not been successful. I didn't think the time was quite right even with a liberal or moderate fifth vote. The place to look might be the states. Same sex marriage, e.g., worked itself up from there & then a federal case (Windsor) was the tipping point nation-wide. But, the President played a big role there too.

Posted by: Joe | May 13, 2017 2:20:38 PM

Interesting tidbit:

Symbolic states “might reflect a unique compromise that serves an ongoing, if unrecognized, social purpose of mediating the demands for harsh punishment and the realities of modern legal processes and sensibilities."

This is so even given the costs involved. Costs being flagged on this blog, this might be notable.

Posted by: Joe | May 13, 2017 5:54:11 PM

It does seem ridiculous to have the death penalty. The appeals take so long the poor devils could die of old age or even almost forget in part their actions. The costs of these appeals isnot sustainable. Just like the costs of going back and giving all the enhancements and Mandatories that the federal system used to dish out.

The good old USA is going to have to wakeup awfully soon or we all will drown in the Sea of Debt. I just cannot comprehend that this administration thinks we can continue with all the spending increases and cut the taxes dramatically. Its just nit going to work and neither is lengthening the ridiculous sentences the feds dish out.

Problem with eliminating the death sentence is, you cant punish the most severe cases any more than run if the mill LWOP. Thats the sticking point.

Posted by: MidWestGuy | May 13, 2017 7:36:28 PM

Doug asked that I not be repetitive. The lawyer misunderstanding of the self evident is repetitive. I am sorry, Doug. I will be brief.

The death penalty serves no crime purpose because its dose is too low, too delayed, too expensive, too random, too biased against the most frequent victims, black victims, in sparing their killers. It is beset by an infinite number of false lawyer allegations, such as cruelty. These allegations violate 3.3 from the Model Rules of Conduct.

It is not a punishment. Punishment is a consequence that reduces the likelihood of a behavior later. It ends all behavior. It is an incapacitation.

Why have it, now? Why bring it back, after it went away? Anyone? You have one guess. The answer starts with a symbol, the $.


Posted by: David Behar | May 13, 2017 7:43:30 PM

And I still believe that a “Furman II” would be one of the few rulings that could actually prompt political backlash against the court. Support for the death penalty might not be deep but it is still wide. I believe Heller (if it had come out the other way) was the only other case in my life with as much chance for that sort of reaction.

Posted by: Soronel Haetir | May 13, 2017 11:39:30 PM

Furman v. Georgia led to an influx of laws showing the states still supported the death penalty (the time was ripe for a tough on crime backlash; it might have gone down differently it it came in 1963). The book argues that this time it will be different. I am dubious that we are there yet. If a few more key states turn against the death penalty, it would be more likely.

It would be interesting to know how it would have went down if Heller was decided the other way, especially if it was a narrow decision that interpreted the law in question to allow use of guns in specific ways. D.C. and Chicago [McDonald v. Chicago/the state case] residents passed the laws while most states had at least some sort of state protection of the right to own firearms. Allowing a few areas to have more restrictive laws and even there noting some limits seems like it might be okay to the general public. After all, until then, the Court never addressed the issue directly in recent times and only a limited number cared.

Posted by: Joe | May 14, 2017 10:22:21 AM

Current death penalty jurisprudence serves no benefit to the public nor to crime victims. It is now a type of fraud, taking tax money and returning nothing of value. It should be ended by Congress.

Death would shift to other forms for those who need it, prison accidents, murders, and suicides. A gang in Germany kidnapped and killed a politician. All commit suicide within days of each other, in prison. No drama. No appellate expenses. Efficient. Dahmer, a homosexual serial killer is beaten to death by a paranoid schizophrenic lifer. Lifer is sentenced to two more life sentences. A little expense. No appellate expense. Does sentencing a lifer to more life sentences sound stupid? In deference to Doug, I am not answering that question.

Posted by: David Behar | May 14, 2017 10:37:15 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB