The Failed Case for Eighth Amendment Regulation of the Capital-Sentencing Trial

70 Pages Posted: 8 Aug 2006 Last revised: 27 Nov 2008

See all articles by Scott Howe

Scott Howe

Chapman University, The Dale E. Fowler School of Law


This article explores Eighth Amendment theories that might justify the effort by the Supreme Court to regulate capital-sentencing trials but explains why they are problematic. The Court typically has asserted that the aim of its capital-sentencing doctrine is to achieve nonarbitrariness or consistency in the use of the death penalty. However, the article shows why the Court's regulatorty efforts have not served that goal, why that goal is unachievable, and, ultimately, why that goal does not comport with the mandate of the Eighth Amendment. The article contends that the better view is that the Eighth Amendment limits the use of capital sentencing through a prohibition on retributive excess. This deserts-limitation principle also better explains the Court's current capital-sentencing doctrine than does the consistency goal. Nonetheless, the article contends that even this alternative principle does not easily justify intrusion by the Court into the administration of capital-sentencing trials. The central difficulty is that the Court is unable to specify a method by which states can accurately determine which capital offenders deserve death Unless the Court is prepared to abolish capital punishment, the article argues that the Court would do best to focus its Eighth Amendment efforts to control the use of the death penalty on doctrines definining which offenders are death eligible rather than on rules governing capital-sentencing trials. The Court's regulation of capital-sentencing proceedings has produced an intrusive and seemingly complex doctrine that seems to accomplish little in the way of promoting fairness in the distribution of death sentences.

Keywords: Capital punishment, capital sentencing, death penalty, cruel and unusual

Suggested Citation

Howe, Scott, The Failed Case for Eighth Amendment Regulation of the Capital-Sentencing Trial. University of Pennsylvania Law Review, Vol. 146, 1998. Available at SSRN:

Scott Howe (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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