ABSTRACT

A U S T I N Sarat, professor of jurisprudence and political science, writes about a “new abolitionism” that eschews moralistic arguments against the death penalty, as well as those that suggest the penalty is unconstitutional, in favor of arguments about the unfair and inequitable way in which capital punishment is administered. He argues that “new abolitionists” focus on the damage capital punishment has done to core legal values such as due process and equal protection and to the legitimacy of the law itself.1 Law professor David Dow, who has represented more than 30 death row inmates, argues that the commanding issue for death penalty abolitionists today is innocence; that is, wrongfully convicting the innocent, sentencing the innocent to death, and executing them.2 Innocence is an issue that exposes many of the injustices associated with capital punishment and is arguably the most unfair outcome of the process. Thus, for these new abolitionists (and old abolitionists, too!), when assessing the administration of capital punishment, it is important to distinguish between how the death penalty might be administered ideally and the way it is administered in practice. To support the death penalty is to support actual practice and not some unobtainable ideal. It is noteworthy, in this regard, that much of the Supreme Court’s workload during the past four decades has been devoted to refining capital punishment procedures-to making the process work “right.” The record of this effort clearly shows that the death penalty in the United States remains very much a work in progress.3