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With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current limitations become a distinct possibility. And that is where we are today.

This essay aims to show that the true core of what the Eighth Amendment demands is not consistency but a “deserts-limitation”—a requirement that no person receive the death penalty who does not deserve it. That is a goal on which even conservatives could agree. It is also a goal that many of the existing death penalty doctrines help to fulfill. Thus, this essay aims to explain why a conservative Court should not repudiate the heart of existing Eighth Amendment jurisprudence on capital selection.


Cardozo Law Review de·novo



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