The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity

61 Pages Posted: 15 Sep 2008 Last revised: 4 Nov 2008

See all articles by Rachel E. Barkow

Rachel E. Barkow

New York University School of Law

Date Written: September 5, 2008


The Supreme Court takes two very different approaches to sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist of any these requirements in noncapital cases.

This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution's text, history, or structure, and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If death were no longer different as a matter of constitutional law, our criminal justice system would be * and almost certainly for the better.

Suggested Citation

Barkow, Rachel E., The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity (September 5, 2008). NYU School of Law, Public Law Research Paper No. 08-28, Michigan Law Review, Forthcoming, Available at SSRN:

Rachel E. Barkow (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-992-8829 (Phone)


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