This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association ("ABA") has yet to fully weigh in against the death penalty, though it has taken notice of the bevy of problems associated with it. The ABA's two death penalty-related projects, as well as the justice system's considerable experience with capital cases, plainly show that the reality of the death penalty's administration differs substantially from consideration of capital punishment in the abstract.
Modern American society is very different from American life in the eighteenth century, yet executions, though increasingly rare, remain. This is so even though other harsh bodily punishments once used and tolerated in the penal system -- among them, ear cropping and the pillory -- have not been used for many decades. Part III highlights the rarity of American executions in the 21st century along with the public's heightened unease with them, while Part IV summarizes the Framers' similar unease towards death sentences. Although corporal and capital punishments were meted out in eighteenth-century America, many Framers, history reveals, were fascinated by the potential of penitentiaries and the viability of alternatives to capital punishment. Many of America's founders, in fact, were heavily influenced by Cesare Beccaria's 1764 treatise, On Crimes and Punishments, which spoke out against torture and executions in favor of life sentences. After Part V describes the continued and growing ambivalence of the American public toward executions -- ambivalence shared by many U.S. jurists -- this Essay concludes that the U.S. Supreme Court should declare the death penalty unconstitutional.
Tinkering Around the Edges: The Supreme Court's Death Penalty Jurisprudence, 49 Am. Crim. L. Rev. 1913 (2012)