LAW REVIEWS: Revisiting the Constitutionality of the Death Penalty

A recent law review arti­cle by Professors Carol and Jordan Steiker exam­ines two decades of attempts to reg­u­late cap­i­tal pun­ish­ment and con­cludes that this process may have paved the way to a find­ing that the death penal­ty is uncon­sti­tu­tion­al: “[T]he mod­ern American death penal­ty — with its unprece­dent­ed costs, alter­na­tives, and legal reg­u­la­to­ry frame­work — seems new­ly vul­ner­a­ble to judi­cial inval­i­da­tion. Reform of the death penal­ty and its abo­li­tion might well be on the same path.” The authors point to devel­op­ments such as the num­ber of exon­er­a­tions from death row, the emer­gence of the sen­tence of life with­out parole, and the focus in death penal­ty tri­als on the sen­tenc­ing phase as help­ing to pro­duce a ​“pre­cip­i­tous and unex­pect­ed turn­around” in the num­ber of sen­tences and executions.

Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School, and Jordan M. Steiker holds the Judge Robert M. Parker Endowed Chair in Law at the University of Texas School of Law.

(C. Steiker & J. Steiker, ​“Entrenchment and/​or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment,” 30 Law & Inequality 211 (2012); DPIC post­ed July 20, 2012). Read more stud­ies and law review arti­cles about the death penalty.