Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment

Virtually no one thinks that the constitutional regulation of capital punishment has been a success. The death penalty is, perversely, both over- and under-regulated. The body of doctrine produced by the Court is enormously complex and its applicability to specific cases difficult to discern; yet, it remains unresponsive to the central animating concerns that inspired the Court to embark on its regulatory regime in the first place. The overall effect of 20-odd years of doctrinal head-banging has been to substantially reproduce the pre-Furman v. Georgia (1972) world of capital sentencing.