Carol S. Steiker & Jordan M. Steiker, Lessons for Law Reform from the American Experiment with Capital Punishment, 87 S. Cal. L. Rev. 733 (2014).
Abstract: 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.