Thursday, April 20, 2017

Steiker and Steiker on the History of the Supreme Court and the Death Penalty

Here's a book from late last year that we failed to notice until now: Courting Death: The Supreme Court and Capital Punishment (Harvard University Press), by Carol S. Steiker (Harvard Law School) and Jordan M. Steiker (University of Texas School of Law). A description from the Press:
Unique among Western democracies in refusing to eradicate the death penalty, the United States has attempted instead to reform and rationalize state death penalty practices through federal constitutional law. Courting Death traces the unusual and distinctive history of top-down judicial regulation of capital punishment under the Constitution and its unanticipated consequences for our time.

In the 1960s and 1970s, in the face of widespread abolition of the death penalty around the world, provisions for capital punishment that had long fallen under the purview of the states were challenged in federal courts. The U.S. Supreme Court intervened in two landmark decisions, first by constitutionally invalidating the death penalty in Furman v. Georgia (1972) on the grounds that it was capricious and discriminatory, followed four years later by restoring it in Gregg v. Georgia (1976). Since then, by neither retaining capital punishment in unfettered form nor abolishing it outright, the Supreme Court has created a complex regulatory apparatus that has brought executions in many states to a halt, while also failing to address the problems that led the Court to intervene in the first place.
While execution chambers remain active in several states, constitutional regulation has contributed to the death penalty’s new fragility. In the next decade or two, Carol Steiker and Jordan Steiker argue, the fate of the American death penalty is likely to be sealed by this failed judicial experiment. Courting Death illuminates both the promise and pitfalls of constitutional regulation of contentious social issues.
One of many blurbs:
Courting Death is a brilliant and insightful book with a powerful thesis, namely that the death penalty in the United States has been unwittingly regulated to death. It is the most forceful and significant intervention I have read on the question of capital punishment to date, a remarkable contribution to our legal, historical, and political debates.—Bernard E. Harcourt
More information, including the TOC, is available here.

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