Kalmanson on Incrementalism in Death Penalty Abolition

Wednesday, January 30, 2019

 

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments as to how abolition vary. Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. On the other side of the same coin, this Article contends that the constitutional jurisprudence created since 1972, when the U.S. Supreme Court reset capital sentencing in Furman v. Georgia, has gradually narrowed capital punishment as a result of the controlling “evolving standards of decency” standard, specifically as to who may be sentenced to death, how sentences of death are imposed, and how defendants are executed.

This Article first shows that incrementalism has led to the current landscape of capital punishment in this country. The Article then contends that an incremental approach to reaching abolition is inherent in the governing “evolving standards of decency” standard and the most effective and realistic way of achieving abolition. Finally, the Article then proposes the next steps in this incremental approach to eliminating the death penalty in America.

https://lawprofessors.typepad.com/crimprof_blog/2019/01/kalmanson-on-incrementalism-in-death-penalty-abolition.html

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Kalmanson on Incrementalism in Death Penalty Abolition curated from CrimProf Blog