Courting Death: The Supreme Court and Capital Punishment

Unique among Western democracies in refusing to eradicate the death penalty, the United States has attempted instead to reform and rationalize state death penalty practices through federal constitutional law. Courting Death traces the unusual and distinctive history of top-down judicial regulation of capital punishment under the Constitution and its unanticipated consequences for our time. In the 1960s and 1970s, in the face of widespread abolition of the death penalty around the world, provisions for capital punishment that had long fallen under the purview of the states were challenged in federal courts. The U.S. Supreme Court intervened in two landmark decisions, first by constitutionally invalidating the death penalty in Furman v. Georgia (1972) on the grounds that it was capricious and discriminatory, followed four years later by restoring it in Gregg v. Georgia (1976). Since then, by neither retaining capital punishment in unfettered form nor abolishing it outright, the Supreme Court has created a complex regulatory apparatus that has brought executions in many states to a halt, while also failing to address the problems that led the Court to intervene in the first place. While execution chambers remain active in several states, constitutional regulation has contributed to the death penalty's new fragility. In the next decade or two, Carol Steiker and Jordan Steiker argue, the fate of the American death penalty is likely to be sealed by this failed judicial experiment. Courting Death illuminates both the promise and pitfalls of constitutional regulation of contentious social issues.

About the Author :
Carol S. Steiker is Henry J. Friendly Professor of Law at Harvard Law School. Jordan M. Steiker is Judge Robert M. Parker Endowed Chair in Law at the University of Texas School of Law.

Review :
This is the most important book about the death penalty for a generation and, likely, ever. Anyone who cares about the state of justice in America should read this book. Courting Death is a brilliant and insightful book with a powerful thesis, namely that the death penalty in the United States has been unwittingly regulated to death. It is the most forceful and significant intervention I have read on the question of capital punishment to date, a remarkable contribution to our legal, historical, and political debates. Courting Death charts precisely the past and present of what has sadly become a uniquely American dilemma and, most importantly, sets out the doctrinal road map that will likely guide Supreme Court Justices in the future. Written by the most respected capital punishment scholars of the day, it is essential reading. [The Steikers] provide a clear and comprehensive look at the 40-year modern history of capital punishment in the United States since its reinstatement in 1976…Courting Death provides an excellent survey of the history of capital punishment and the prospects of abolition…The Steikers explain technical legal issues with such clarity that their book is highly accessible to lawyer and layperson alike. Carol and Jordan Steiker…are the leading contemporary scholars of the death penalty. In Courting Death: The Supreme Court and Capital Punishment they have brilliantly defined—in language accessible to the general reader—the massive dysfunction of the current system and the course that a future Supreme Court could take to do away with it. The Steikers deliver an extraordinarily well-documented, forceful and ferocious assault on state and federal administration of capital punishment since then. Courting Death is, almost certainly, the best book on this subject. Carol S. Steiker and Jordan M. Steiker (sister and brother) have written a revealing book about the history of the death penalty in the U.S. and, in particular, the continued difficulties the Supreme Court has had in attempting to regulate capital punishment so that it conforms to constitutional standards…[An] excellent book.