Although modem doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. Two concrete ways to improve it would be to (1) explain the sentencer' s role in the narrative voice, a way of speaking that, at least in American society, appears to be associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences by state appellate courts, bringing the responsibility of state appellate judges in capital cases in line with the responsibility they bear in constitutional cases dealing with analogous mixed questions of fact and law under the First, Fourth, Fifth, and Sixth Amendments, as well as in noncapital punishment cases under the Eighth and Fourteenth Amendments. Part II summarizes modem death penalty doctrine and surveys the wide-ranging criticism of that doctrine both from members of the Court and academic commentators. Part III presents the responsibility theory as an alternative to the Court's misguided pursuit of consistency and individualization in capital sentencing. It explains why individual responsibility is necessary to morally acceptable capital punishment and shows how modem doctrine tends to advance individual responsibility. Concluding subsections respond to likely empirical and theoretical criticisms. Part IV proposes reforms of modem doctrine that would more fully realize the benefits of the responsibility theory.
Responsibility in Capital Sentencing,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol39/iss1/4