Carol S. Steiker & Jordan M. Steiker, Capital Punishment: A Century of Discontinuous Debate 100 J. Crim. L. & Criminology 643 (2010).
Abstract: 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.