This Comment argues that the death penalty is inconsistent with underlying principles of American democracy and is thus illegitimate as a matter of political philosophy, despite its conceded constitutionality. It analyzes the Supreme Court's idiosyncratic treatment of challenges to capital punishment on grounds of due process, equal protection and cruel and unusual punishment, demonstrating the unreliability of such challenges. It examines in detail the death penalty's political implications for the American system of democracy and why those implications render capital punishment illegitimate in our society. It discusses the role of the political process in the abolition of the death penalty. This Comment concludes that the death penalty ought to be rejected as a matter of political philosophy and that permanent abolition cannot be achieved through the traditional courtroom attacks. Lasting repeal of the death penalty provisions can be realized only through a critical re-evaluation of the proper role of government and by legislative and popular commitment to those principles.
Stephen H. Jupiter,
Constitution Notwithstanding: The Political Illegitimacy of the Death Penalty in American Democracy,
23 Fordham Urb. L.J. 437
Available at: http://ir.lawnet.fordham.edu/ulj/vol23/iss2/8