The Challenges of 'Improving' the Modern Death Penalty

16 Pages Posted: 12 Oct 2016

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: October 10, 2016

Abstract

In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”

Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.

After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.

Keywords: Death Penalty, capital punishment, sentencing reform, capital procedures

JEL Classification: K14, K4, K42

Suggested Citation

Berman, Douglas A., The Challenges of 'Improving' the Modern Death Penalty (October 10, 2016). Ohio State Public Law Working Paper No. 369. Available at SSRN: https://ssrn.com/abstract=2850471 or http://dx.doi.org/10.2139/ssrn.2850471

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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