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September 17, 2019

"Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism"

The title of this post is the title of this new paper authored by Kent Scheidegger now available via SSRN. Here is its abstract:

The Supreme Court’s jurisprudence on capital sentencing is a mess.  That may be the only proposition that draws a consensus in this sharply divisive area.  Critics and supporters of capital punishment agree that the system created by the Court fails to achieve its goals, although for different reasons.  The entire body of case law is an exercise in judicial activism.  That is, it consists of the decisions by the Supreme Court creating rules that shifting majorities believed were good policy at the time, unsupported by any demonstrable connection to the original understanding of the Eighth Amendment. 

I contend that the worst aspect of this body of case law — both in constitutional illegitimacy and in harmful effects — is the rule of Lockett v. Ohio that the defendant must be allowed to introduce and have considered virtually unlimited evidence in mitigation. The Court’s inability to agree with itself from one year to the next on what this rule means has caused many wrongful reversals of well-deserved sentences.  The unlimited potential it creates for attacking the competence of defense counsel continues to cause massive delay and expense, and all for evidence of limited probative value.  This is a massive failure of judicial activism. I propose that the Court prune back the rule to only the circumstances of the crime, youth, and lack of a criminal record and return the question of the admissibility of all other mitigation to the people and the democratic process.

September 17, 2019 at 05:11 PM | Permalink


A Constitution that fails to grow, evolve and remain relevant to the environment of the day is not worth the paper it is printed on. That is why judicial activism is and always has been at work since the day the US Constitution was written. And the reason why the UK has so long resisted a written Constitution. Of course, the US Supreme Court has been inconsistent at times, and perhaps more importantly has left gaping holes in legislation that renders opportunities for further challenge and interpretation. It could indeed be argued that the Supreme Court has been too timid or cautious in its activism - the reason why the death penalty was restored against all reason in 1976.

Posted by: peter | Sep 18, 2019 6:42:55 AM

Scheidegger, Kent, Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism (September 13, 2019). Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3453350

Posted by: Claudio Giusti | Sep 18, 2019 10:57:36 AM

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