Race, Angst and Capital Punishment: The Burger Court's Existential Struggle
Seton Hall Constitutional Law Journal, Vol. 9, p. 67, 1998
53 Pages Posted: 27 Nov 2012
Date Written: January 1, 1998
This applies the lens of existential thought onto the Burger Court’s inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. This existential lens not only explains the reasons for the Burger Court’s failure to remedy the problem, but also prescribes a more effective response. The existential ethic of revolt demands that courts persist in attempting to remedy the problem of racism, even in light of the realization that they are unable to completely eliminate racism from the discretionary workings of the criminal justice system. This article chronicles the Burger Court’s journey. Part I discusses the Court’s initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. Part II explores the Court’s reinstatement of the death penalty, and two of the Court’s forays “bad faith” denial that sustained the death penalty, particularly the Court’s belief that guided discretion statutes and remedies to ensure the proper composition of juried in capital cases could cure capital sentencing of racial influences. Part II further demonstrates how the Court missed key opportunities to tailor its constitutional requirements to racial fairness, and how this failure to recognize or acknowledge the true dimensions of racism in capital sentencing impeded the Court’s ability to create more effective remedies. Part III analyzes McCleskey v. Kemp and its themes of remedial paralysis and bad faith. The article then turns to the existential ethic of revolt, and demonstrates how such an ethic could have operated to prevent the Court from falling into the trap of existential bad faith and remedial paralysis.
Keywords: existential thought, discretionary system, remedial paralysis, due process clause, bad faith, ethics
JEL Classification: K00, K7, K78, K14, K4, K42
Suggested Citation: Suggested Citation