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Copyright (c) 1986 Northwestern School of Law
Journal of Criminal Law & Criminology

ARTICLE: Supreme Court Review: Foreword: How To Criticize The Death Penalty

Fall, 1986

77 J. Crim. L. & Criminology 546




The arguments put forward by opponents of the death penalty -- "abolitionists" -- fall into two categories, procedural and substantive. Procedural arguments claim that there are irremediable flaws in the processes used to select the small subset of killers 1 who will actually be executed. 2 That is, even assuming certain killers "deserve to die," no procedural system can possibly identify all and only those persons. Substantive arguments attempt to prove that execution as a form of punishment is morally wrong regardless of the procedures used to pick out those to be executed. That is, no killers "deserve to die" -- or, at least, none deserve to have death deliberately inflicted on them by the state.

Most contemporary opponents of the death penalty emphasize procedural arguments. 3 Particularly prevalent are the contentions that the administration of capital punishment is arbitrary and standardless, racially discriminatory, and prone to error. Appeal to procedural arguments is partly a tactical reaction to the Supreme Court's refusal to declare the death penalty per se "cruel and unusual." 4 But the procedural focus also reflects frustration over the notorious intractability of substantive arguments. These arguments often seem doomed to deteriorate into a simple, stark clash of irreconcilable fundamental "subjective" values. 5 Thus the suggestion is made that it would be more profitable -- more likely to allow reasoned argument, formation of a consensus, and so forth -- to focus on questions of procedure. 6

I shall argue that this hope of achieving greater "objectivity" via ...
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