Disciplining Death: Assessing and Ameliorating Arbitrarines in Capital Charging
Sherod Thaxton. Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago. According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty. The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital…