Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism

46 Pages Posted: 16 Sep 2019

See all articles by Kent Scheidegger

Kent Scheidegger

Criminal Justice Legal Foundation

Date Written: September 13, 2019


The Supreme Court’s jurisprudence on capital sentencing is a mess. That may be the only proposition that draws a consensus in this sharply divisive area. Critics and supporters of capital punishment agree that the system created by the Court fails to achieve its goals, although for different reasons. The entire body of case law is an exercise in judicial activism. That is, it consists of the decisions by the Supreme Court creating rules that shifting majorities believed were good policy at the time, unsupported by any demonstrable connection to the original understanding of the Eighth Amendment. I contend that the worst aspect of this body of case law–both in constitutional illegitimacy and in harmful effects–is the rule of Lockett v. Ohio that the defendant must be allowed to introduce and have considered virtually unlimited evidence in mitigation. The Court’s inability to agree with itself from one year to the next on what this rule means has caused many wrongful reversals of well-deserved sentences. The unlimited potential it creates for attacking the competence of defense counsel continues to cause massive delay and expense, and all for evidence of limited probative value. This is a massive failure of judicial activism. I propose that the Court prune back the rule to only the circumstances of the crime, youth, and lack of a criminal record and return the question of the admissibility of all other mitigation to the people and the democratic process.

Keywords: Death Penalty, Capital Punishment, Eighth Amendment, Constitutional Law, Original Understanding, Originalism,Judicial Activism, Sentencing

JEL Classification: K14, K42

Suggested Citation

Scheidegger, Kent, Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism (September 13, 2019). Ohio State Journal of Criminal Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3453350

Kent Scheidegger (Contact Author)

Criminal Justice Legal Foundation ( email )

2131 L Street
Sacramento, CA 95816
United States

HOME PAGE: http://www. cjlf.org

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