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This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court abolished the penalty as then problematically administered to see whether States could do without it or find ways to improve it. The experiment revealed that the nation had not evolved beyond the death penalty for deliberate murder but had for lesser crimes, and that by sharing constitutional responsibilities with local democratic actors, the Court and the actors might together identify the murders for which death was and was not disproportionate.

Once it chose to regulate rather than abolish the penalty, why did the Court do so via contradictory constitutional requirements to narrow the death penalty and make death verdicts more numerous? Doctrinal incoherence arose from the Court's abdication of even the abbreviated responsibilities it retained under its system of shared constitutional decisionmaking.

Is coherent regulation possible? Maybe. Furman provoked useful feedback from state legislatures about the proportionality of death for particular crimes. Before the Court abdicated its monitoring role, its post-Furman procedures had provoked useful information from juries and state appellate courts about the proportionality of death for particular deliberate murders and murderers. These successes seemed to portend an effective process for interpreting the Cruel and Unusual Punishment Clause and a partial solution to the difficulty courts have in forthrightly justifying or banning state violence. The Court's inability to implement even this promising system of shared constitutional decisionmaking, however, is good evidence that constitutional regulation of the death penalty is impossible and that the Court should abolish it.


Criminal Law | Criminal Procedure | Law | Supreme Court of the United States