Commentary, Capital Punishment and the Courts

130 Harv. L. Rev. Forum 269 (2017)

7 Pages Posted: 24 May 2017 Last revised: 18 Apr 2018

Date Written: May 23, 2017


In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence. They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972—leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking. The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy. And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified. The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations. It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty. Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency. Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board—or at least as applied to specified categories of offenders—unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.” The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

Keywords: capital punishment, death penalty, executions, eighth amendment, steiker, courting death, cruel and unusual punishment, murder, deterrence, retribution, lethal injection, proportionality, furman, AEDPA, punishment, life imprisonment, evolving standards of decency

JEL Classification: K00, K1, K3, K10, K19, K30, K39

Suggested Citation

Mitchell, Jonathan F., Commentary, Capital Punishment and the Courts (May 23, 2017). 130 Harv. L. Rev. Forum 269 (2017). Available at SSRN:

Jonathan F. Mitchell (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States


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