No abstract

Our courts were entrusted with the responsibility of judicial review, in large part, to protect individuals and minorities in their fundamental rights against abridgement by both government and majoritzes.

Death is different, th e adage goes-different in its seve rity and different in its fina lity. ' Dea th , in its fin ality, is more th an just a punishm ent. Dea th is th e encl of our existence as we knovv it. It is fin al in an ex istential way. Beca use death is fin al in an ex istenti al way, th e Supreme Co urt has held th at spec ial ca re is clu e when th e penal ty is imposecl. 2 We need to ge t it right. My claim in thi s chapte r is that th e constitubona l regulation designed to impl em ent that ca re has led to a seri es of casca ding effec ts th at threa te n th e continu ed viability of th e death penalty itself. Getting death right leads to thin gs go ing wrong, and things go ing wro ng lead to stales letting go. l am not th e first to see how th e Supreme Co 11rt's reg ulati on of th e death pena lty has led to its des ta bi li za ti on over tim e. Oth e rs ha ve written abou t it. 3 And severa l judges have now brought the co nversation full circle, recogni zin g Spec ial ilwnb lo Ron Bac igal, Ji1n Cibso 11 , and Mary Ke ll y Ta lc for co111 111cnls 011 an ea rl ier cl ra fl , an d lo I-loll y \Milson and Za ck Ma cDonald for their exc cll cni• research ass islancc. Beck v. i\l:1ba1na , 447 U.S. 625, 637 11980) ("As we ha ve oft en stat ed, !here is a signifi cant constiluti onal difference bciwcc n th e dea th penally and lesser punish1ncnts. ' Deat h is a different kill(! of p11 11isllln cnt• fro111 any oth er whi ch 111ay be i111poscd in thi s co untry .... Frolll the point of view of th e defendant, it is differe nt in both its seve rity and its lina lil y.'"). 'v\loodso n v. North c,1ro li 11a, .µ 8 U.S. 280, 305 (1<)76). For th e Sup re1llC CcJllrt 's dcd1rnt io11S to lh is effect, sec text acco111panying nolcs 5-7. Caro l <1 ncl Jordan Siciker's work is parlic ul arly nolcworl hy in lhis regard. Caro l S. Siciker and Jordan M. St•ciker, "Enl rc nclllncnt and/or Deslabilization? J{eAccl ions on IAno lh er) Two Decad es of Co11slil ut"io1w l Reg1daiio 11 of C1 pil al Punislllncnl•," Law o• /11eque1lity (2012): 211;