18 U.C. Davis L. Rev. 1113 (1984-1985)
Reasonable Levels of Arbitrariness in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment

handle is hein.journals/davlr18 and id is 1123 raw text is: Reasonable Levels of Arbitrariness in
Death Sentencing Patterns: A Tragic
Perspective on Capital Punishment
F. Patrick Hubbard*
After sketching the process model for capital punishment adopted by
the Supreme Court, this Article discusses the need for judicial review of
capital sentencing patterns and the arbitrariness inevitably involved
in providing this review. The paradox involved in providing such arbi-
trary review indicates the need for adopting a tragic perspective on capi-
tal punishment. From this perspective, various positions on the propriety
of the death penalty can be understood as tactics to avoid the tragic di-
lemma resulting from the inability of our cultural framework of values to
resolve the dispute about the justice of executions. This Article discusses
and views the process model adopted by the Supreme Court as such a
tactic. In addition, this Article analyzes judicial responses to challenges
to the sentencing patterns that result from this process model in terms of
a desire to avoid the tragic conflict involved. Finally, this Article criti-
cizes these tactics and urges an honest acceptance of the tragic situation.
INTRODUCTION
Murders and executions stir our most profound emotions and raise
disturbing questions about fundamental social values. As a result, the
question of whether to execute a murderer forces society to discover
once again that there is a tragic dimension to the human condition. It is
not simply that injustice or immorality exists. Our human pretensions
can accommodate occasional violations of the moral order. The tragic
aspect of the capital punishment question is that our value systems pro-
*Professor of Law, University of South Carolina. B.A., 1966, Davidson College,
J.D., 1969, New York University, LL.M., 1973, Yale University. The author ex-
presses his thanks to David Bruck, William McAninch, and Eldon Wedlock for their
useful comments, suggestions, and criticisms concerning this Article.

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