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67 U. Miami L. Rev. 329 (2012-2013)
The American Death Penalty: Constitutional Regulation as the Distinctive Feature of American Exceptionalism

handle is hein.journals/umialr67 and id is 341 raw text is: University of Miami Law Review VOLUME 67 WINTER 2013 NUMBER 2 KEYNOTE ADDRESS The American Death Penalty: Constitutional Regulation as the Distinctive Feature of American Exceptionalism JORDAN M. STEIKERt After a long period of stability, the American death penalty looks newly fragile. Several jurisdictions have recently abandoned the death penalty following years of state legislative inactivity. Death sentencing has declined, as have executions. Although the size of the nation's death row has swelled, many of the condemned face no realistic prospect of execution. Popular support for the death penalty appears more tenuous. Many of our peer countries have abandoned the death penalty. Per- haps most importantly, after years of indifference, the U.S. Supreme Court has revealed a new willingness to examine state death penalty practices. The year, of course, is 1968. The end of that story is familiar. The Court briefly flirted with judicial abolition-invalidating essentially all prevailing statutes on Eighth Amendment grounds in 1972. But the state legislative backlash, fueled by rising rates of violent crime, led to new state capital statutes. The Court affirmed the basic constitutionality of the death penalty four years later and sought to cure its acknowledged defects through a web of regulation, inaugurating what we now regard as the modem era of capital punishment. Today, after three and a half decades of judicial regulation, we find ourselves in seemingly familiar territory. The American death penalty t Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law. This keynote is based on an earlier essay, Carol S. Steiker & Jordan M. Steiker, Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment, 30 LAW & INEQ. 211 (2012). Published with permission from LAW & INEQ.

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