Rationalizing Capital Law: The Death Penalty in the Neoliberal Era

• In Event: Complexities of Capital Punishment

Abstract

For almost 40 years after its 1976 Gregg ruling, until the Breyer-Ginsburg dissent in Glossip v. Gross (2014), the fundamental constitutionality of capital punishment went unquestioned by the U.S. Supreme Court. The consequence was more than 1,380 executions during the time frame, together with some 8,000 death sentences. Despite hearing numerous capital appeals, the Court permitted the death penalty’s constitutionality to go unchallenged. Given the plethora of controversies that have continually surrounded modern era capital punishment, this hiatus is in need of analysis, and the literature offers no systematic accounts. We conceptualize post-Gregg capital punishment law and administration in the context of the neoliberal turn, a transition from embedded classic liberalism that began, non-coincidentally, around the time of Gregg. We show how, in the context of both neoliberal and neoconservative logics, the Court’s compartmentalization, rationalization, and technicalization of death penalty issues helped insulate capital punishment from serious challenge and legitimate its sustained use through the present time, amidst persistent irrationalities and dehumanization.

Authors

• Ryan Phillips, Eastern Kentucky University

• Kevin I. Minor, Eastern Kentucky University