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.