“Courting Abolition”

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.