'Reasonable Levels of Arbitrariness' in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment
University of California Davis Law Review, Vol. 18, p. 1113, 1985
52 Pages Posted: 16 Dec 2010
Date Written: 1985
Abstract
After sketching the process model for capital punishment adopted by the Supreme Court, this Article discusses the need for judicial review of capital sentencing patterns and the "arbitrariness" inevitably involved in providing this review. The paradox involved in providing such arbitrary review indicates the need for adopting a tragic perspective on capital punishment. From this perspective, various positions on the propriety of the death penalty can be understood as tactics to avoid the tragic dilemma resulting from the inability of our cultural framework of values to resolve the dispute about the justice of executions. This Article discusses and views the process model adopted by the Supreme Court as such a tactic. In addition, this Article analyzes judicial responses to challenges to the sentencing patterns that result from this process model in terms of a desire to avoid the tragic conflict involved. Finally, this Article criticizes these tactics and urges an honest acceptance of the tragic situation.
Keywords: Capital Punishment, Death Penalty, Constitutional Review, Eighth Amendment, Punishment, Deterrence, Retribution, Law and Tragedy, Tragic Choices, Jurisprudence, Legal Theory
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