Capital Punishment

American capital punishment is at a crossroads. Capital sentencing and executions have declined markedly. Several states have recently abolished the death penalty and others have imposed moratoria on executions. Despite extensive constitutional doctrines regulating state capital practices, state capital systems are still fraught with arbitrariness, inaccuracy, and unfairness. Many of the problems facing American capital punishment are intractable and likely unamenable to significant improvement or reform. This chapter describes the obstacles to reform and the case for moratorium or repeal. It then offers three concrete proposals for retentionist jurisdictions, focusing on improving capital representation, centralizing prosecutorial charging decisions, and limiting the application of the death penalty against persons with serious mental illness.