Reference no: EM133854307

Question

1. What is the strongest institutional argument for allocating primary decision-making authority over the death penalty to state legislatures?

The political process is less susceptible to tyranny of the majority.

This issue is better dealt with by the federal government because it involves interstate spillovers.

The question is both morally and empirically complex (does the death penalty deter murder? by how much? how many innocent persons are likely to be executed? how does race factor into the administration of capital punishment?), with wide-ranging effects on interests unlikely to be represented before a court.

The death penalty was in widespread use at the time of the Constitution's adoption; therefore, the Eighth Amendment cannot have been intended to prohibit it.

2. What is the strongest institutional argument for allocating primary decision-making authority over the death penalty to federal courts?

The Eighth Amendment prohibits cruel and unusual punishment and the death penalty clearly qualifies.

This issue is better dealt with by the federal government because it involves interstate spillovers.

The question is both morally and empirically complex and therefore better dealt with by federal courts than the political process.

The federal courts are less susceptible to tyranny of the majority, which is a significant risk in the treatment of accused criminals, especially given the long history of racial disparities in the administration of the death penalty.