The Second Death of Capital Punishment

Abstract

This paper seeks to reexamine, and to reformulate, the terms of our national capital punishment dialogue by approaching death penalty jurisprudence as a problem of constitutional structure and form. As a factor contributing to the incremental demise of capital punishment in the United States, omnipotent and omniscient judicial regulation of capital sentencing has significant consequences for the political institutions responsible for controlling the people in our constitutional design. Examining the Supreme Court's recent categorical exemption cases, this paper confronts the raw moral judgments and political preferences that define the Court's immodest understanding of its own authority under the Eighth Amendment. It also examines recent capital habeas cases to demonstrate that the Court may be softening the rigorous standards for habeas relief especially for capital cases. Ultimately, these actions have weakened the death penalty and, more importantly, our political institutions. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state criminal law interests, the Court diminishes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional mediums for filtering out public passions and building coalitions for responsible democratic action to control the people. The paper therefore urges a greater awareness of, and endorses a constitutional law that safeguards, formal institutional arrangements.