St. Mary's Law Journal


Since Gregg v. Georgia, the Supreme Court has developed what could be described as a subparadigm for capital punishment. This subparadigm is now at a point of crisis for two enduring and mutually supporting reasons. The dissents by Justice Brennan and Justice Marshall represent the convergence of the better modern thought in regard to capital punishment. Even with the retirement of both Justices, the criticism found in their dissenting opinions presents a continuing challenge to the plurality’s position. Those using the plurality’s rhetoric are now split into two groups. Justices Blackmun and Stevens regularly vote against capital punishment, while focusing on Majoritarianism and considerations of fairness related to retribution, recently seem more likely to assert capital punishment is appropriate simply because the American people want it. While the intellectual foundations of the subparadigm are unraveling, it is not likely the Majoritarian Court will abandon its position in favor of capital punishment. The greatest obstacle to change is the fact the American people probably want capital punishment as a symbol of their opposition to crime as well as for other complex cultural reasons related to symbolic thought. The amendments made to the Crime Control Bill were made on the floor of the House of Representatives without committee investigation or apparent deep discussion of the justifications for the death penalty. In the same floor debate, the House of Representatives approved prohibitions on the use of capital punishment in racially discriminatory patterns. One can expect the African American community and others concerned with civil liberties to mobilize around that position, which itself will serve a symbolic function. Those opposed to the death penalty will and should continue to press questions of procedural and substantive unfairness. This pressure will continue to undermine the integrity of the plurality’s position.


St. Mary's University School of Law