Title: Commentary, Capital Punishment and the Courts
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.
Publication Year: 2017
Publication Date: 2017-05-23
Language: en
Type: article
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