LAW REVIEWS: The American Experiment with Capital Punishment

A recent law review arti­cle by Professors Carol and Jordan Steiker describes how the Supreme Court’s attempt to close­ly reg­u­late the death penal­ty has led instead to more unpre­dictabil­i­ty in its prac­tice, espe­cial­ly with exe­cu­tions. Writing in the Southern California Law Review, the Steikers, of Harvard Law School and the University of Texas Law School respec­tive­ly, note that, “[T]he shape of con­tem­po­rary death penal­ty prac­tice is in many respects less reg­u­lar than the prac­tice it replaced. … Some death penal­ty juris­dic­tions exe­cute a sub­stan­tial per­cent­age of those sen­tenced to death, where­as oth­ers car­ry out vir­tu­al­ly no exe­cu­tions. Overall, we have large­ly replaced a lot­tery for death sen­tences with a lot­tery for exe­cu­tions, and the engine behind that change is reg­u­la­tion itself.” As an exam­ple, the authors point to Texas and Virginia, which have been respon­si­ble for almost half (620) of the exe­cu­tions in the mod­ern era. On the oth­er hand, California and Pennsylvania, which have had more death sen­tences than Texas and Virginia, have car­ried out only 16 exe­cu­tions in the same time span. The Steikers con­clude that the death penal­ty’s arbi­trari­ness may lead to its abo­li­tion: ​“reg­u­la­tion now appears to pose extra­or­di­nary prob­lems for the con­tin­ued reten­tion of the death penalty.”

(C. Steiker & J. Steiker, ​“Lessons For Law Reform From The American Experiment With Capital Punishment,” 87 So. Cal. Law Review 730, 754, 784 (2014); DPIC post­ed July 16, 2014). See Law Reviews and Arbitrariness.