American Procedural Exceptionalism: A Deterrent or Catalyst for Death Penalty Abolition?

William W. Berry III, Oxford University

Abstract

In my article entitled "American Procedural Exceptionalism: A Deterrent or Catalyst for Death Penalty Abolition?", I aim to make two contributions. First, I argue that the retention of the death penalty in the United States is based not on cultural exceptionalism as has been argued, but instead on a new kind of exceptionalism -- procedural exceptionalism, that is, a belief in the process by which the death penalty is administered in the United States. Second, I assess whether in light of procedural exceptionalism, the United States is likely to abolish capital punishment in the near future.

Section one of my article explores the hypothesis of American cultural exceptionalism as it relates to the death penalty. Section two defines American procedural exceptionalism and considers the three procedural approaches foundational to procedural exceptionalism: the jury system, the writ of habeas corpus, and the right to counsel under the Sixth Amendment.

Section three highlights the correlation between procedural exceptionalism and the use of the death penalty in America since Furman v. Georgia. While not exhaustive, this section attributes many of the shifts to expand or limit the death penalty during the post-Furman period to the relative confidence (the belief in procedure) of the relevant institutional decisionmakers: state legislatures, governors and most significantly, the United States Supreme Court.

Having debunked the cultural exceptionalism hypothesis and traced developments in capital punishment law and use in light of individual and institutional belief in procedure, the article concludes in section four by hypothesizing that procedural exceptionalism will ultimately serve as a deterrent, not a catalyst, to the abolition of the death penalty in the United States.