William & Mary Bill of Rights Journal


While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments vary as to how the system will reach that point. For example, Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. This Article contends that the U.S. Supreme Court’s constitutional jurisprudence that has developed since 1972, when the Court reset capital sentencing in Furman v. Georgia, has aided the Court in gradually narrowing capital punishment, as a result of the controlling “evolving standards of decency” standard. Specifically, the Court has narrowed capital punishment with respect to who may be sentenced to death, how sentences of death are imposed, and how defendants are executed. As a result, this Article contends that the “evolving standards of decency” standard paves the path toward abolition.

First, this Article shows that incrementalism has led to the current landscape of capital punishment in the United States. Then, the Article contends that an incremental approach to reaching abolition is inherent in the governing “evolving standards of decency” standard and the most effective and realistic way of achieving abolition. Finally, the Article proposes the next steps in this approach to eliminating the death penalty in America.