Infrequency as Constitutional Infirmity

51 Texas Tech Law Review 95 (2018)

30 Pages Posted: 27 Sep 2019

See all articles by Sam Kamin

Sam Kamin

University of Denver Sturm College of Law

Date Written: September 1, 2018


In this Article, however, I argue that the infrequency with which the death penalty is currently being imposed in this country is one of the principal reasons that courts should intervene to prevent it. Infrequency is the fatal flaw in the contemporary imposition of the death penalty for at least three reasons. First, and most obviously, it demonstrates that the penalty has been rejected by contemporary society, and that as a result, its imposition is a cruel and unusual punishment under the Eighth Amendment. Second, a punishment imposed so infrequently-and wantonly-can serve no valid penological interest. The argument that the death penalty is necessary to deter crime, incapacitate offenders, or offer retribution to victims and society more generally is undercut by the fact that the percentage of all killers who receive the penalty is vanishingly small. And finally, the infrequency with which the death penalty is currently imposed demonstrates that the fundamental problem identified by the Supreme Court in Furman v. Georgia in 1972 has not yet been solved. Then as now, there is no principled way of distinguishing the very few cases in which the death penalty is imposed from the much larger pool of those eligible to receive the law's ultimate penalty.

Keywords: Capital Punishment, Death Penalty, Eighth Amendment, Furman, Hidalgo, Cruel and Unusual, Narrowing

Suggested Citation

Kamin, Sam, Infrequency as Constitutional Infirmity (September 1, 2018). 51 Texas Tech Law Review 95 (2018). Available at SSRN:

Sam Kamin (Contact Author)

University of Denver Sturm College of Law ( email )

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