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The Failed Case For Eighth Amendment Regulation Of The Capital-Sentencing Trial, Scott W. Howe

Scott W. Howe

This article explores Eighth Amendment theories that might justify the effort by the Supreme Court to regulate capital-sentencing trials but explains why they are problematic. The Court typically has asserted that the aim of its capital-sentencing doctrine is to achieve nonarbitrariness or consistency in the use of the death penalty. However, the article shows why the Court's regulatorty efforts have not served that goal, why that goal is unachievable, and, ultimately, why that goal does not comport with the mandate of the Eighth Amendment. The article contends that the better view is that the Eighth Amendment limits the use of …