LAW REVIEWS: The American Experiment with Capital Punishment

Posted on Jul 16, 2014

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.