A great idea for regulating capital punishment prosecutions

Thanks to this helpful capital literature review from CDW, I see that Adam Gershowitz has published in the Missouri Law Review this great looking new article entitled “Imposing a Cap on Capital Punishment.”  Here is the conclusion to give you a sense of what the article argues:

In its three-decade struggle with the death penalty, the Supreme Court has tried and failed to root out arbitrariness.  The Court’s efforts have failed largely because it has focused on regulating the procedure of capital punishment, rather than forcing substantive changes in the criminal justice system. To the extent that the Court has dabbled in substantive restrictions, it has chosen poor proxies such as mental retardation and age, which do not force prosecutors to confront the core problem of selecting only the worst of the worst offenders from the outset. A preferable approach would be for the Supreme Court to impose a cap on the number of death-penalty prosecutions that each jurisdiction can pursue each year.  Such a cap — if drawn based on the national average of death-penalty prosecutions — would bring outlying jurisdictions into the mainstream, rather than allowing those counties to seek the ultimate punishment in both the worst cases and some borderline cases. Imposing a cap on capital punishment would allow more resources to be devoted to each capital defense and would lower the risk of wrongful convictions. A cap on capital punishment therefore would minimize, though certainly not eliminate, the arbitrariness of the death penalty.