Following Finality: Why Capital Punishment is Collapsing Under Its Own Weight

Final Judgments: The Death Penalty in American Law and Culture (Sarat, ed.) (2017)

24 Pages Posted: 11 Jun 2016 Last revised: 20 Jul 2021

See all articles by Corinna Lain

Corinna Lain

University of Richmond - School of Law

Date Written: June 8, 2016

Abstract

Because the death penalty is final in a uniquely consequential way, the Supreme Court has held that special care is due when it is imposed. My claim in this essay, Chapter 2 in Final Judgments: The Death Penalty in American Law and Culture (2017), is that the constitutional regulation designed to implement that care has led to a series of cascading effects that threaten the continued viability of the death penalty itself. To make this point, I first discuss the role of finality in the earliest developments of the modern death penalty era — constitutional regulation, habeas litigation, and the rise of a specialized capital defense bar to navigate those complicated structures. Because death is final, we need to get it right. Next I turn to the effects of those developments — a massive time lag between death sentence and execution, and with it, the discovery of innocents among the condemned, skyrocketing costs, and concerns about the conditions of long-term solitary confinement on death row. Getting death right leads to things going wrong. Finally, I examine the cascading effects of those developments — falling death sentences and executions, penological justifications that no longer make sense, and a growing number of states concluding that capital punishment is more trouble than it is worth. Things going wrong lead to states letting go. In the end, the finality of capital punishment is what makes it so rarely final, and so costly, cumbersome, and slow that it is collapsing under its own weight.

Keywords: death penalty, capital punishment

Suggested Citation

Lain, Corinna, Following Finality: Why Capital Punishment is Collapsing Under Its Own Weight (June 8, 2016). Final Judgments: The Death Penalty in American Law and Culture (Sarat, ed.) (2017), Available at SSRN: https://ssrn.com/abstract=2792235

Corinna Lain (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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