The American death penalty is a shadow of what it once was. In 2016, states conducted fewer executions than they had in twenty-five years,1×1. Death Penalty Info. Ctr., The Death Penalty in 2016: Year End Report 1, 2 (2016), http://deathpenaltyinfo.org/documents/2016YrEnd.pdf [https://perma.cc/CVQ5-J67K] (noting that there were just twenty executions in 2016). and juries delivered the lowest number of new death sentences since 1972,2×2. Id. at 3. the year the Supreme Court invalidated then-existing death penalty statutes.3×3. Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (per curiam). Only five of the thirty-one death penalty states even carried out an execution — the smallest number since 19834×4. Death Penalty Info. Ctr., supra note 1, at 5; Death Penalty Info. Ctr., Facts About the Death Penalty 1 (2017), http://www.deathpenaltyinfo.org/documents/FactSheet.pdf [https://perma.cc/S4RA-269M] (listing the thirty-one death penalty states and the nineteen non–death penalty states). — and two of those five states (Georgia and Texas) performed eighty percent of all executions,5×5. Death Penalty Info. Ctr., supra note 1, at 2. thus indicating that actively executing states are now outliers. In addition, approximately forty percent of Americans now oppose the death penalty, the highest rate in over four decades.6×6. Id. at 7; see also Press Release, Death Penalty Info. Ctr., Death Sentences, Executions Drop to Historic Lows in 2016,
http://www.deathpenaltyinfo.org/YearEnd2016#pressrelease [https://perma.cc/JU54-SYGG] (“National public opinion polls also showed support for capital punishment at a 40-year low.”). These trends are just a handful of many stunning developments occurring throughout the United States, demonstrating that the death penalty, one of this country’s most entrenched institutions, now appears close to demise.
This decline, however, is not the first, nor even the most pronounced, episode of the death penalty’s diminution. Over four decades ago, capital punishment was nearly eliminated. In 1972, in Furman v. Georgia,7×7. 408 U.S. 238. the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.8×8. Id. at 239–40 (per curiam). While the Justices deciding Furman were famously splintered in their reasoning,9×9. Furman was a per curiam decision consisting of just one paragraph and nine separate opinions. Id. at 239–470; see also Stuart Banner, The Death Penalty: An American History 264 (2002) (discussing the nine opinions “divided along philosophical lines”). most of them were troubled by the degree of discretion then allotted to sentencing juries along with the resulting arbitrariness in death-sentencing decisions.10×10. Banner, supra note 9, at 260–66. As Justice Stewart declared: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. . . . [T]he petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”11×11. Furman, 408 U.S. at 309–10 (Stewart, J., concurring). All told, Furman’s impact was dramatic, with virtually every death-sentencing system in the country struck down overnight12×12. See id. at 411 (Blackmun, J., dissenting). at a time when public support for the death penalty was also near its lowest level.13×13. Death Penalty, Gallup, http://www.gallup.com/poll/1606/death-penalty.aspx [https://perma.cc/T6TA-WXVX] (showing that the year 1966 marked the only time between 1937 and 2016 that — responding to the question “Are you in favor of the death penalty for a person convicted of murder?” — more American respondents opposed the death penalty (47%) than favored it (42%)).
The Furman Court’s abrogation was short-lived, however: states soon rallied to restore executions. In 1976, in Gregg v. Georgia,14×14. 428 U.S. 153 (1976). the Court ruled that the death penalty was not a per se violation of the Eighth Amendment, upholding newly passed, guided-discretion approaches like Georgia’s against a renewed constitutional challenge.15×15. Id. at 187, 206–07 (plurality opinion). Gregg therefore revitalized this country’s death penalty, ending a moratorium that had lasted nearly ten years (from 1967 to 1976).16×16. See Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment 106–25 (1973).
With this resurgence, however, came what many have called America’s “experiment” with the death penalty — the Court’s unpredictable attempt not only to reinstate, but also to reform a punishment that most thought had ended with Furman (p. 3).17×17. Justice Blackmun referred to this process as an “experiment.” Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari). As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, such an effort has involved the Supreme Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok (p. 3). In essence, this revised American death penalty would continuously undergo regulation by the federal courts, especially the Supreme Court, in an effort to “tame” the penalty’s “arbitrary, discriminatory, and excessive applications” by way of constitutional controls (p. 40).
At least initially, this regulation seemingly fueled the death penalty’s acceptability by instilling “faith among justice system participants and the general public in the reliability and fairness of the process” (p. 4). Yet, as the Steikers stress, such faith has not stood the test of time. The experiment has failed, and ironically so. The Court’s regulatory mechanisms are so cumbersome and complex, their goals so dubious and varied, that they have unwittingly propelled the death penalty’s “destabilization” and weakened status, its strength never to return again (pp. 4–5). Due to this byzantine regulation, the purported rationales for having a death penalty — retribution and deterrence — have been comparably diminished.
The end result is that “the Court has regulated the death penalty to death” (p. 4). In the next ten to twenty years, the authors predict, the Court will abolish the death penalty entirely, assuming the ideological balance of the Court remains at least as liberal as it was before Justice Scalia’s passing (pp. 287–89). (As is discussed in section II.C, however, this assumption is more tenuous than when the Steikers were writing.) While the Steikers foresee a Furman II coming (pp. 258, 287), they doubt there will be a Gregg II to bring the death penalty back again (p. 287). The Court will have experienced too many decades of failed efforts at intervention to give credence once again to a backlash (pp. 287–88).
Courting Death is a markedly compelling book, an achievement for its authors in light of the book’s extraordinary breadth, not simply about the death penalty, but also about the vast array of cultural, political, and historical forces that have helped steer its course. For the Steikers, a brother-and-sister team, the death penalty has been a shared passion that began with their respective stints as law clerks for the renowned abolitionist Justice Marshall and has grown, first in their years of practice and now further during their time as academics. Their book captures as much of the complicated story of the death penalty as any book can, exploring in rich relief factors that can both shape and stymie capital punishment’s future. In their academic and real-world experiences, the Steikers are primed to take on such an ambitious project, and they succeed.
In this Review, I first discuss the Steikers’ primary arguments and their comprehensive depiction of the death penalty as a failed experiment of judicial regulation that has “come full circle over the past fifty years,” bringing the country back to where it was in the lead-up to Furman in 1972 (p. 3). I then consider the legitimate, if limited, success of reform efforts — driven both by the Court and by outside groups — and end by analyzing sources of reform independent of constitutional regulation, most particularly lethal injection litigation.
*Arthur A. McGivney Professor of Law; Founding Director, Neuroscience and Law Center, Fordham University School of Law. I am most thankful to the editors of the Harvard Law Review for their editorial excellence and to Alissa Black-Dorward, Marianna Gebhardt, Megan Martucci, Erica Valencia-Graham, and Benjamin Chisholm for their helpful contributions. The Gerald Edelman Fellowship provided generous support.