The Problem of Implementing a Constitutional System of Capital Punishment

Abstract

The article examines the history of the Supreme Court’s capital punishment jurisprudence under the Eighth Amendment, focusing on the twin principles that the Court has identified: guided discretion and individualized sentencing. The article argues that these two principles, if both broadly construed, ultimately conflict with each other and result in a death penalty jurisprudence that is internally inconsistent. The article suggests harmonizing the principles by emphasizing the role of guided discretion in capital sentencing while limiting the role of the individualized sentencing principle.