Principle and Pragmatism in the Death Penalty Debate

Abstract

Siblings Carol and Jordan Steiker come by their opposition to capital punishment honestly. As law clerks to Justice ThurgoodMarshall, an inveterate abolitionist, they observed and participated in the process of reviewing (and resisting) death sentences first-hand. As legal scholars and activists, they have continued to press their case, highlighting the unfairness, unwisdom, and incoherence of American capital sentencing law and practice. Courting Death represents the culmination of their efforts to understand, explain, and hasten the demise of capital punishment. It is packed with interesting historical details and learned insights about legal strategy, political realities, and judicial decision-making related primarily to criminal justice in the United States. It also develops and defends a compelling narrative about the course and character of American-style capital punishment, showing how the process of constitutional regulation, designed to preserve the death penalty, may yet prove its undoing. Indeed, the puzzle at the heart of the book concerns the process by which the Supreme Court’s decision to regulate capital punishment in the 1960s led first almost to abolition in 1972, then to retrenchment in 1976, and now again to a likely abolition. In particular, they note: