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66 Denv. U. L. Rev. 563 (1988-1989)
The Process of Death: Reflections on Capital Punishment Issues in the Tenth Circuit Court of Appeals

handle is hein.journals/denlr66 and id is 601 raw text is: THE PROCESS OF DEATH: REFLECTIONS ON CAPITAL PUNISHMENT ISSUES IN THE TENTH CIRCUIT COURT OF APPEALS STEVEN SEMERARO* A question of morality that has escaped reasoned analysis for centu- ries has now become integrated into the rational sphere of the law. The justification for the taking of human life by a society in response to the acts and intentions of an individual had never been adequately ex- plained. In the early 1970s, the Supreme Court was called upon to achieve through the power of reason, what a millennium of thought could not attain. The first step was realistic. In an opinion written by Justice Harlan, a six member majority of the Court held that while capi- tal sentencing should command the utmost of thought and introspec- tion, structured legal reasoning had no place in the individual moral decision between life and death. Justice Brennan in dissent bemoaned that no matter how difficult, the deprivation of life could not be a deci- sion unbounded by the rule of law.' The Court has continually strug- gled with these two realities ever since. Fundamentally wed to both; unable to achieve either. INTRODUCTION The Court's initial attempt to distance itself from the death penalty in McGautha v. Cahfornia,2 which left the entire area to state control, was doomed to fail. In a society committed to using formal rules to govern behavior, reliance upon pure humanity, unbounded by the structure of rules, to impose capital punishment was unthinkable. Thus, two years later in Furman v. Georgia,3 the Court reversed its course, holding that the existing system of distinguishing those who live from those who die was unconstitutional. If a state wanted a death penalty, it had to devise a more rule bound scheme. * Associate, Covington & Burling, Washington, D.C.; Stanford Law School, J.D. (1987); Rutgers College, B.A. (1984). Many of the ideas expressed in this article are drawn from the scholarship of Robert Weisberg and Mark Kelman to whom I owe a con- siderable debt. Kristina Ament's comments on earlier drafts have also been extremely helpful. All errors are my own. 1. His assumption, of course, was that if Harlan was correct and the death penalty could not be captured by the rule of law, then the death penalty itself was unconstitutional. Brennan proved himself willing to follow through on this reasoning. Few others had suffi- cient faith in the power of judicial decision or the dedication to advancing morality through it. Even one as committed to liberalization through judicial reasoning as Justice Douglas never took the absolutist position to which Brennan has clung for the past decade and a half. 2. 402 U.S. 183 (1970). 3. 408 U.S. 238 (1972).

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