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30 Law & Ineq. 211 (2012)
Entrenchment and/or Destabilization - Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment

handle is hein.journals/lieq30 and id is 215 raw text is: 211 Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment Carol S. Steikert & Jordan M. Steikertt Introduction Fifty years ago, in the early 1960s, death penalty abolitionists in the United States began a litigation campaign to bring an end to capital punishment in the United States. Over the next few decades, abolition would sweep through Europe and the Anglo-American legal world, where it now appears firmly established. In the United States, however, the constitutional abolition imposed by Furman v. Georgia' in 1972 was tentative and short-lived. The Supreme Court's re-authorization of the death penalty in 1976 led to a raft of new capital statutes and a rising tide of executions. The Court's approach to the death penalty in the post-1976 modern era of American capital punishment diverged, however, from the deferential, federalist approach of the preceding two centuries, during which states retained virtually complete control over death penalty practices. Rather, the Supreme Court inaugurated an ongoing project of federal constitutional review of capital punishment, through which it developed an intricate body of Eighth Amendment doctrine. The United States became the first and only one of its peer nations to move not from formal retention of the death penalty to abolition, but rather from retention to regulation. Writing in the mid-1990s, we criticized the Supreme Court for failing to provide effective regulation of capital practices, while simultaneously creating a misleading impression of extensive judicial oversight.2 The Court's capital jurisprudence, though arcane and intricate, placed few meaningful restrictions on state t. Henry J. Friendly Professor of Law, Harvard Law School. It. Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law. 1. 408 U.S. 238 (1972). 2. Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 357 (1995).

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