Copyright © 1997 Florida State University Law Review

Opponents of the death penalty have long taken the United States Supreme Court to task for not ruling that the penalty is per se unconstitutional. But there also has been a longstanding breed of less absolutist critics. These critics are willing to assume arguendo that regulation rather than abolition is a proper stance for the Court. They then argue that the Court's chosen means of regulation have proven ineffective to remedy the very evils that prompted the Court to undertake regulation of capital punishment in the first place. The most complete and high-profile presentation of this critique occurs in a provocative article in a recent issue of the Harvard Law Review. There, Professors Carol S. and Jordan M. Steiker seek to perform an "internal" critique of Supreme Court death penalty jurisprudence: an examination of whether the Court has achieved the goals that it has set for itself since it began to regulate state death penalty law more than two decades ago.

The purpose of this article is to dispute the arguments of the less absolutist critics represented by Steiker and Steiker. I will do this by responding to Steiker and Steiker's piece, which I deem to be the "state of the art" for this type of critique. I will argue that despite the virtues of their article, Steiker and Steiker are wrong in two important ways.

First, they, along with other critics I will call "academic underinclusionists," have wrongly concluded that minimizing all underinclusion has been one of the Court's concerns. This incorrect conclusion regarding underinclusion is exacerbated by Steiker and Steiker's view that the Court's three alleged substantive concerns—overinclusion, underinclusion, and individualization—are of equal weight. I will argue, rather, that there are three causes of underinclusion: (1) "merits-based"—the case is underincluded because reasonable minds can differ with respect to whether it is one of the "worst" homicides; (2) "mundane"—the case is underincluded because of everyday concerns that apply to capital and noncapital cases alike, such as loss of a key witness, case overload leading to plea bargaining, etc.; and (3) "invidious"—the case is underincluded because of illegitimate racial or class bias. I believe that the Court has viewed merits-based underinclusion as a desirable phenomenon: it has often prohibited states from using mechanisms that would curtail such underinclusion. As to mundane underinclusion, I believe the Court has recognized that it is beyond the Court's power to regulate, short of complete abolition of the death penalty, a step the Court has never been willing to take. That leaves invidious underinclusion, the only form of underinclusion about which the Court has been concerned. The academic underinclusionists' mistake regarding the Court's alleged across-the-board concern with underinclusion is a serious one because underinclusion is a far more prevalent feature of capital punishment than is overinclusion. Thus, if these critics are wrong about the Court's concern with underinclusion, it throws their entire argument into serious doubt.

The correct view, I will contend, is that the Court has had only one primary goal for its regulation of capital punishment: decreasing overinclusion, with particular interest in minimizing invidious overinclusion due to racial bias. I will argue that the Court's regulatory efforts have prompted responses from the states that, at least on their faces, seem to have the potential to partially achieve the Court's goal.

The question then becomes, of course, whether these state responses have actually succeeded in producing such improved results. I will contend that the second way in which I believe Steiker and Steiker have erred is by not substantiating their claim that the Court has legitimated state death penalty systems having the same potential to operate arbitrarily as the pre-Furman v. Georgia systems. Beyond that, I will argue that they have not proven that post-Furman systems are in fact systematically operating in as arbitrary a fashion, even accepting Steiker and Steiker's assertion that the Court is opposed to all underinclusion. In fact, the best available evidence strongly suggests that post-Furman systems are operating less arbitrarily with respect to both overinclusion and underinclusion, and that this improvement is likely due in significant part to the Court's regulatory efforts.

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