The Death Penalty: A 25-Year Retrospective and a Perspective on the Future

Abstract

Death penalty law has been transformed dramatically over the last 25 years. By some measures, judicial and legislative initiatives have produced substantial improvements in the administration of capital punishment. By other accounts, changes in death penalty laws have been sorely inadequate to remedy basic defects in capital punishment systems. This article reviews the development of death penalty law over the past quarter century. It focuses on the substantive and procedural changes that have occurred in capital punishment jurisprudence since the Supreme Court decided McGautha v. California (1971). After reviewing the watershed rulings of the early and middle 1970s, including Funnan v. Georgia (1972), Gregg v. Georgia (1976), and Woodson v. North Carolina (1976), it discusses case law and legislation that have given shape to present death penalty legal doctrine. Because the major substantive legal battles over capital punishment in this country have been resolved, at least for the foreseeable future, the article identifies several procedural principles that must be recognized if death penalty systems are to have a claim to legitimacy in the future.