Death is different, the adage goes - different in its severity and different in its finality. Death, in its finality, is more than just a punishment. Death is the end of our existence as we know it. It is final in an existential way.
Because death is final in an existential way, the Supreme Court has held that special care is due when the penalty is imposed. We need to get it right. My claim in this chapter is that the constitutional regulation designed to implement that care has led to a series of cascading effects that threaten the continued viability of the death penalty itself. Getting death right leads to things going wrong, and things going wrong lead to states letting go.
I am not the first to see how the Supreme Court's regulation of the death penalty has led to its destabilization over time. Others have written about it. And several judges have now brought the conversation full circle, recognizing the constitutional implications of this phenomenon. But thus far, the role of finality has received little attention in the discourse. This chapter aims to give it its due.
This book was published by Cambridge University Press.
Corinna Barrett Lain, Following Finality: Why Capital Punishment Is Collapsing under Its Own Weight, in Final Judgments: The Death Penalty in American Law and Culture (Austin Sarat, ed., Cambridge University Press 2017).