Faculty Bibliography

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s. The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction. This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment is withering in practice, the prospects for constitutional abolition via judicial decree have also decreased substantially, as the U.S. Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive regulation – even judicial abolition – of American capital punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual” punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced “abolition in waiting” – a marginalized practice that will remain on the books until changes in the composition of the Court permit reassessment of the death penalty’s constitutionality.

In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased threat of airline hijacking nationwide (and worldwide). In California, the Anderson decision was superseded that same year by a ballot initiative that amended the California constitution to ensure the constitutionality of capital punishment. At the federal level, the U.S. Supreme Court revisited its Furman decision four years later in Gregg v. Georgia, re-authorizing the death penalty nationwide with its validation of new capital statutes that purported to guide the exercise of discretion by capital sentencers. Such speedy about-faces might be seen as evidence of the limits of constitutional intervention, at least with regard to topics as “hot” as the death penalty. Under this view, if the political branches of government are not ready to act, courts cannot get out too far ahead without facing backlash, as observers have often commented with regard to other hotbutton issues like school integration and abortion rights. And if the political branches are ready to act without a judicial mandate, then constitutional intervention by courts is superfluous. For the first few decades after Furman, the U.S. Supreme Court continued to refine procedures for new guided-discretion capital sentencing regimes but left the substance of the death penalty alone. State courts largely followed suit under their own state constitutions. Death sentences and executions surged as the political branches continued to embrace the death penalty, with death sentences and executions both reaching their nationwide modern-era (post-1976) highs during the late 1990s. Starting around 2000, however, the trend reversed. Death sentences and executions dramatically declined nationwide over the course of the next two decades. Prosecutors sought the death penalty less often, juries returned fewer death sentences when it was sought, some governors imposed moratoria on carrying out death sentences, and numerous states abolished capital punishment—most recently, Virginia, the first Southern state to do so and the state logging the largest number of executions in American history. This trend of radical diminution of the death penalty was so pronounced that many, ourselves included, predicted a hollowing out of the death penalty capped by a federal constitutional “Furman II” as a coup de grace that would sweep in outliers like Texas and Alabama. Despite the backlash that greeted the first generation of constitutional intervention, the newly weakened state of the American death penalty seemed to point to judicial abolition as the last, best hope for nationwide abolition. But broadening the lens beyond the U.S. Supreme Court, which at this point in time seems extremely inhospitable to federal constitutional challenges to the death penalty, reveals that the situation is more complex. Judicial constitutional (and sometimes statutory) intervention promoting death penalty abolition is neither hopeless (because of backlash) nor the only hope (to sweep in political resisters); rather, it interacts in complex ways with the work of the political branches. We can see this interaction most clearly at the state level, where intervention by state courts has played an important role in the nationwide decline of the death penalty, but in many different and sometimes unexpected ways. In what follows, we explore some of the myriad scenarios in which state court intervention—only rarely involving full-blown, Anderson– or Furman-style abolition—has interacted with political reform or repeal efforts to accelerate the recent massive decline in the use of the death penalty across the United States. Each one of these stories is unique, reflecting each state’s specific context and history. But these scenarios can also be seen as archetypes of dynamics that could play out in a broadly similar way in other contexts and, thus, provide important lessons for advocates in other jurisdictions. Moreover, the sum of the scenarios, when viewed in the aggregate, offers an important historical corrective. These dynamics between judicial and political action illuminate the importance of state court intervention in the story of the American death penalty’s precipitous decline, which has tended to foreground other institutional actors and to neglect the complex interactions among branches of government. State judicial rulings, though often highly technical and, therefore, less visible and accessible to the public, have been a pervasive and powerful force in the two-decade-long diminution of the practice of capital punishment across the United States. Although we label state court decisions that hasten the demise of the death penalty as “little Furmans,” it is important to emphasize that the state judicial interventions we describe below, though diverse in their details, differ strikingly in their dynamics from Furman. Furman arrived at a time when state legislatures had paid scant attention to the death penalty. In fact, Furman arrived in large part because of state legislative inattention. The NAACP Legal Defense insisted that the extraordinary pre-Furman decline in capital sentencing and executions revealed that prevailing state capital statutes did not accurately reflect societal attitudes about the death penalty. And the refusal of state legislatures to revisit their statutes suggested that those statutes had fallen into desuetude, relics of an outdated morality that was evident in the infrequent, haphazard, and discriminatory use of the death penalty. Litigants in Furman argued that judicial intervention was required to put an end to a practice that had for all practical purposes run its course. But several of the Justices necessary to the result in Furman were not fully convinced and were unwilling to embrace the claim that the death penalty was inconsistent with societal standards of decency. So, Furman’s intervention proved to be essentially procedural, highlighting the absence of efforts by state legislatures to ensure that the death penalty was rationally and consistently applied, leaving open the door to state legislative efforts to tame the death penalty through more refined capital statutes. Because Furman arrived at a time of legislative inactivity, it was widely perceived to be “counter-majoritarian”—imposing significant judicial limitations on (perhaps even abolition of) the death penalty despite scant political activity in that direction. Of course, that characterization could be disputed. Even though there was not a strong or successful political campaign to end the death penalty in the years before Furman, the manifest declines in death sentencing and executions suggested weakening political support. But whatever the valence of public or political support for the death penalty at the time, it is undoubtedly true that Furman was not building on or advancing the work of legislative bodies. In contrast, the myriad state judicial interventions described below arrived at a very different time in the life of the American death penalty, and they were deeply connected to and in conversation with the work of state political branches. In some cases, the state courts directly advanced moral commitments identified and embraced by the state legislatures (including legislative commitments to racial justice or even legislative efforts to move away from the death penalty). In other cases, the state courts imposed minimal restraints on the death penalty, leaving it to the state legislature to decide whether to navigate those restraints or to use the state court decision as an occasion to let the death penalty expire without the political visibility or costs of an outright legislative repeal. Unlike in Furman, the state courts in these scenarios acted after a period of extended public debate about the wisdom and appropriate shape of the death penalty and substantial engagement with the issue by the political branches. In this respect, the state court interventions are best understood as culminations of a dialogue with the political branches in contrast to the sudden, lightening-like, and widely unexpected intervention in Furman.

This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?

Comparative Capital Punishment offers a set of in-depth, critical and comparative contributions addressing death practices around the world. Despite the dramatic decline of the death penalty in the last half of the twentieth century, capital punishment remains in force in a substantial number of countries around the globe. This research handbook explores both the forces behind the stunning recent rejection of the death penalty, as well as the changing shape of capital practices where it is retained. The expert contributors address the social, political, economic, and cultural influences on both retention and abolition of the death penalty and consider the distinctive possibilities and pathways to worldwide abolition.

The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.

For the past decade or so, criminal justice reform in the United States has been having a moment. After decades of massive increases in incarceration rates around the country, advocates for serious rethinking of harsh criminal justice policies have begun to find more receptive audiences at the local, state, and federal levels. However, the 2016 presidential election brought into office a new administration that often embraces the perspective of earlier eras on crime and punishment. How might the momentum of criminal justice reform be maintained in this new political climate? Looking back at some of the drivers of change over the past decade offers helpful guidance for the future—not just for this moment of flux, but for the inevitable future fluctuations to come. This Article offers a catalog of six aspects of the current criminal justice reform moment that can be thought of as tools for promoting continued reform efforts. Each of these tools is of limited power by itself, and all have possible downsides. But wielded thoughtfully and in tandem, they can build sturdy vehicles for propelling forward the essential and unfinished project of criminal justice reform.

The article looks at how Pope Francis' declaration that the Catholic Church deemed the death penalty inadmissible could influence the use of such punishment in authoritarian countries and the U.S.

he article focuses on the history of execution of death penalty law in the U.S. It reports abolishment of death penalty in Michigan, Rhode Island, and Wisconsin. It also discusses the amendment regarding prohibition of death penalty law; history of African American slavery and lynch mob violence; and Tennessee's abolition of capital punishment.

The American death penalty is often described as anomalous, distinctive, or exceptional in the sense that at present, in the early years of the twenty-first century, the United States is the sole Western democracy that retains the practice of capital punishment. However, a second aspect of American exceptionalism in this context has largely escaped notice. The United States has chosen not merely to retain the death penalty while its peer nations have abolished it; rather, the United States has embarked on nearly 40 years (since 1976) of intensive, top-down, constitutional regulation of the practice by the federal courts, led by the U.S. Supreme Court. The choice of regulation in the place of mere retention has produced a complex web of interactions among the federal judiciary and state and local legislatures, executive officials, courts, and of course activists on both sides of the issue and the general court of public opinion. Close study of these interactions generates a compelling and dynamic story that sheds a great deal of light on the death penalty itself—on its functions and meanings in American society and politics, on its history, and on its future.

The third edition of America's Experiment with Capital Punishment has been expanded and updated to include several important developments since the publication of the second edition in 2003. New evidence is presented about the incidence of wrongful convictions, racial and geographical disparities in capital charging and sentencing practices, deterrence, trends in public opinion, jury decision-making, how the capital punishment process affects the families of both murder victims and offenders, the conditions and consequences of death row incarceration, the financial costs of capital punishment, executive clemency, and many other issues. Renewed attention is given to execution methods (focusing on lethal injection), capital punishment for persons with intellectual disabilities, and other matters of significance. Legal developments also are chronicled, including trends in the Supreme Court's interpretation and application of the ''evolving standards of decency'' and related Eighth Amendment principles, the prohibition against executing juvenile offenders, significant changes in federal habeas corpus policies, and the repeal of death-penalty statutes in several states. New chapters have been added to address the historical evolution of capital punishment (John Bessler), and the death penalty for persons with mental disabilities (Christopher Slobogin). Several additional authors have joined to produce the updated chapters. The book's twenty-six chapters critically analyze the history, politics, law, empirical evidence, and principled underpinnings of the contemporary debate about the death penalty in America. They also assess likely future trends in capital punishment law and practice. Written by the country's leading legal and social science scholars, the chapters collectively represent the most comprehensive and illuminating treatment of death penalty issues presently available in a single volume.

In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade. Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization. We contrast the effects of the death penalty reforms of prior generations – such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods – with the reforms of the modern era of constitutional regulation. The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence. We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious. We explore the implications of these insights for two broader debates – the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.

The authors present a cohesive intellectual framework that views the law as an instrument of social control, providing an analytical tool with which students can interpret and understand doctrine. This work focuses on developing an understanding of principles and rules applicable to all crimes, rather than the detailed and disjointed elements of any particular crime. Cases-and-notes pedagogy, with excerpted materials, questions, and problems, illuminate the material. Problems enhance students’ understanding of the basic principles by testing their applications and interactions in the context of particular offenses.

It is a signal honor to succeed Bill Stuntz as the Henry J. Friendly Professor of Law at Harvard. To hold a Chair named for such a respected judge and held by such a respected scholar and beloved colleague and friend is not only an honor but also an inspiration – to hone my own craft, to think harder, and to reach farther, both professionally and personally.Stuntz and Friendly were both brilliant and principled in their respective legal domains, but I’m sure I was not the only one to joke with Bill that he was more “friendly” than his Chair's namesake, who was known to be rather intimidating. My topics for this chapter – mercy and justice, in Bill Stuntz's work and my own – may lead some to a similarly amused bemusement, in that my approach to this topic is more explicitly religious in inspiration than Bill's own, despite the fact that he was a devout Christian and I am an (at most) agnostic Jew. Perhaps it was Bill's unconscious influence, or perhaps it was my very agnosticism that liberated me to explore theology as a source of public values, but it was I (and not Bill) who gave a keynote address at a Chicago Divinity School conference, on “Doing Justice to Mercy,” and who later co-taught a course with a Harvard Divinity School professor on “Justice and Mercy in the Jewish and Christian Traditions and American Criminal Justice.” In what follows, I hope to show that the theological origin of the concept of mercy offers both a contrast to and a path toward a human-scaled practice of mercy – a practice informed by and sympathetic to Bill's own criminal justice scholarship and Christian commitments.

This Special Feature contains the full text of the report we wrote for the American Law Institute that provided the scholarly background for the ALI’s eventual withdrawal of the death penalty provisions of the Model Penal Code. The report is exactly as it was submitted to the ALI, and it is preceded by an introduction providing some historical context regarding the ALI’s involvement with the death penalty and describing the report’s production and aftermath.

This essay challenges the easy (because partially true) assumption that there is nothing new under the sun in death penalty discourse. Rather, debates about capital punishment have been as much discontinuous as continuous over the past century. Some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades, despite the fact that they cared deeply about the issue of capital punishment in their own times. This essay describes two “lost” arguments from the past in favor of retention of capital punishment: the contention that capital punishment was a necessary antidote to extrajudicial lynchings and the defense of capital punishment as part of a larger program of eugenics endorsed by many progressive leaders of the late nineteenth and early twentieth centuries. The essay also explores two “new” abolitionist arguments from the present: the fiscal argument about the greater cost of capital punishment even in comparison to life imprisonment and the concerns raised about the suffering of those awaiting execution for lengthy periods (the so-called “Death Row Phenomenon”). Death penalty discourse has not been as static as is often assumed, and the debates of each era provide a window onto both the nature of the actual practice of the death penalty in different times and the broader social contexts in which that practice has operated.

American capital practice has changed markedly over the past four decades. Constitutional regulation of state death penalty practices has transformed the size and scope of capital trials; federal and state court review of capital verdicts has become more intricate and time-consuming; and state death rows remain quite large despite significant declines in capital sentencing. These changes have altered the cost of capital punishment and, perhaps more importantly, public perceptions about the cost of capital punishment. Government officials, death penalty opponents and supporters, and the broader public have slowly but now almost unanimously concluded that the costs of capital punishment outweigh the costs of lifetime noncapital incarceration. This article documents the emergence of the cost argument against the death penalty and discusses the rhetorical and strategic functions of such an argument in the modern era, including the possible role of cost in bringing an end to the American death penalty.

This chapter examines the prospects for the abolition of death penalty in the United States. It considers the process through which abolition will occur and explains why this process will differ from the pattern that has been seen in European countries such as Portugal, Germany, Italy, and the Netherlands. It then discusses emerging prospects for the constitutional abolition of capital punishment in the United States in the modern era. It also analyzes the “first-generation” constitutional challenges to the death penalty advanced in the Supreme Court case Furman v. Georgia, which were rejected in subsequent cases, along with other developments that raise the possibility of constitutional change in the status of capital punishment. Finally, it outlines the most likely course that abolition will take and assesses its implications for abolitionist lawyers and activists.

This article discusses Justice Louis Brandeis's dissent in ♦Olmstead v. United States♦ from the Taft Court's decision to exempt government wiretapping from constitutional regulation. This is generally considered to be one of the great dissents for two reasons: (1) —its vindication on the issue of the constitutional status of wiretapping by the Warren Court in the famous Katz decision, and (2) its grounding of Fourth Amendment guarantees as rights of “privacy.” However, Professor Steiker argues that this dissent has an even stronger claim of greatness: Justice Brandeis's at once lyrical and indignant call for the repudiation of government lawbreaking in the pursuit of its own law enforcement goals, as such lawbreaking teaches contempt for the law.

This Symposium seeks to use the Jena Six case as a vehicle for exploring troubling modern problems of racial justice in the American criminal justice system. The purpose of this Introduction is to offer the reader a factual overview of the case, explain its socio-legal significance, outline the Symposium’s goal, and summarize how each of the articles in this Symposium seeks to further that goal.

Symposium: Protecting a National Moral Consensus: Challenges in the Application of Atkins v. Virginia: Seventeenth Annual DePaul Law Review Symposium