Repudiating Death

52 Pages Posted: 3 Mar 2010 Last revised: 7 Jun 2011

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: August 29, 2010


In recent years, three Supreme Court justices, Powell, Blackmun, and Stevens, have all called for the abolition of the death penalty, repudiating their prior approval of the use of capital punishment. This article conceptualizes these reversals not as normative shifts on the morality of capital punishment, but instead as shifts in the justices' views concerning their own need to exercise judicial restraint towards the states with respect to the death penalty.

Two separate decisions comprise their abandonment of judicial restraint. First, Powell, Blackmun, and Stevens all acquiesce to the decision of the Court to use the Eighth Amendment to regulate the states' administration of capital punishment. Later, each of the three justices separately advocates interpreting the Eighth Amendment to prohibit the states' use of the death penalty entirely. This paper argues that both of these decisions to abandon deference to the states reflect, on the part of Powell, Blackmun, and Stevens, a diminishing view of the Court's duty to exercise judicial restraint with respect to state legislatures and their use of the death penalty.

In addition to explaining why their respective rejections of the death penalty were institutional (and not moral) choices, the article argues that these repudiations were the inevitable consequence of the initial decision to use the Eighth Amendment to regulate the death penalty. The experience of these justices and the Court over the past thirty-five years demonstrates the extreme difficulty in interpreting and applying the Eighth Amendment in a manner that ensures that states' administration of the death penalty is fair and non-arbitrary. When one premises his support of capital punishment upon the notion that the application of the Eighth Amendment can achieve these goals, as Powell, Blackmun, and Stevens did, the futility of trying to correct the myriad of problems with the states' use of the death penalty leads to the conclusion that no fruitful remedy exists other than abolishing capital punishment.

Keywords: Powell, Blackmun, Stevens, Capital Punishment, Death Penalty, Eighth Amendment, Judicial Restraint, Pandora's Box

Suggested Citation

Berry, William W., Repudiating Death (August 29, 2010). Journal of Criminal Law and Criminology, Vol. 101, No. 2, 2011, Available at SSRN:

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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