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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. 1113

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