Death penalty is generally conceived of as the supreme legal sanction, inflicted only against perpetrators of the most serious crimes. The human rights community has traditionally held a stance against the death penalty for a wide variety of reasons: critics argue that the death penalty is inhuman and degrading; that it is inappropriately applied and often politically motivated; and that rather than reducing crime, the viciousness of the punishment only serves as an inspiration to further violence. Historically the death penalty has existed all around the world. Only since the beginning of the twentieth century has the death penalty been rejected by a growing number of people and states. International law discourages but does not prohibit it. Article 6 (paragraphs 2 and 5) of the International Covenant on Civil and Political Rights states that "sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime . . . . Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Regarding the nonreintroduction of the death penalty, the American Convention on Human Rights (Article 4.3) is the most explicit instrument, since it provides that "[t]he death penalty shall not be reestablished in states that have abolished it" (McGarrell & Sandys, 2008).

Although the death penalty is not entirely prohibited, several legal instruments have been brought into existence that seems to pave the way for total abolition. The Second Optional Protocol to the International Covenant on Civil and Political Rights (1991) aims at the abolition of the death penalty, by virtue of which thirty-three states have decided to abolish this punishment within their jurisdiction. It is in the European system that the trend has gone the furthest. The Convention for the Protection of Human Rights and Fundamental Freedoms now has a Protocol No. 6 Concerning the Abolition of the Death Penalty. This was adopted in 1982 by the Council of Europe's Committee of Ministers (Bohm, 2003).

According to data presented at the 1998 session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, fifty-four states have abolished the death penalty and fifteen others have done the same except in times of war. Twenty-seven additional states no longer apply the sentence, although it has not been made illegal. Finally, ninety-seven states maintain the death penalty in their legal systems. According to 1996 Amnesty International figures, China, the Ukraine, the Russian Federation, and Iran had the highest number of executions, accounting for 92% of the year's total. Although the execution of people under age eighteen is prohibited by international law, five nations have been accused by Amnesty International of continuing the practice-- Iran, Pakistan, Saudi Arabia, the United States, and Yemen (Bohm, 2003).

A death penalty carried out unlawfully comes under the competence of the Special Rapporteur on Summary and Arbitrary Executions elected by the UN Commission on Human Rights. The UN Secretary General, when apprised of impending executions that may not conform to the above-mentioned safeguards, can use his best endeavors, as he did in vain in 1986 with an appeal for the life of James Terry Roche. Roche was later executed in the United States for murder committed when he was seventeen (McGarrell & Sandys, 2008).

Among NGOs, Amnesty International has taken a leading role in pursuing abolition of the death penalty worldwide. The group argues that the death penalty is "an act of violence and violence tends to provoke violence. The imposition and infliction of the death penalty is brutalizing to all who are involved in the process." In 1998 Amnesty International protested the execution of Karla Faye Tucker in Texas, issuing a scathing critique of the Texas justice system, accusing it of "a litany of grossly inadequate procedures which fail to meet minimum international standards for the protection of human rights" (Bradizza, et al. 2006).

Apart from humanitarian and philosophical concerns, the most striking argument against the death penalty seems to be the fact that, as euphemistically stated by successive United Nations studies, "the deterrent effect of the death penalty is, to say the least, not demonstrated" (Bradizza, et al. 2006). However, the debate is still lively, as supporters of the death penalty remain firmly convinced that the punishment is a necessary and effective method of controlling crime.

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What we focus on here are the many criticisms of the death penalty, almost all of which do not reflect well on state courts. The most persistent and documented criticism has been that the penalty has been applied in a racially discriminatory way. That is, among other things, black criminal defendants are more likely to be sentenced to death as compared to their white counterparts.30 And while the Supreme Court in the 1970s began subjecting the penalty itself and its attendant procedures in state courts to scrutiny under the Eighth Amendment, (McGarrell & Sandys, 2008) since then, it is often said, a majority of the Court has in effect "deregulated" the process and permitted the state great latitude in the court procedures they follow when considering whether to impose these penalties. Concern with these procedures, and related concern with the adequacy of defense counsel (almost always appointed) and other issues led the American Bar Association in 1997 to call for a moratorium in the states on the imposition of the penalty (Bohm, 2010). Finally, it is often said that state judges find it particularly difficult to fairly adjudicate the rights of defendants in these cases. Support for (or opposition to) the death penalty has become a high-profile issue in the 1980s and 1990s in elections in general and judicial elections in particular. In that environment, it is often difficult for a state judge facing election to make rulings that may allow a defendant to avoid the penalty, given possible retribution at the polls. As proof, the electoral defeats of three California Supreme Court justices in 1986 are often cited, widely attributed to the votes of these jurists to set aside death penalties upon appellate review. For over three decades, all executions in this nation have been administered by states. (Federal death penalty statutes were reenacted starting in the late 1980s, and since then several federal defendants have been sentenced to death, but as of 1999 no executions of those individuals had taken place.) It is no surprise, then, that virtually all proposals to reform death penalty litigation (short of outright abolition) have been directed at the states, and usually involve actions taken at the federal level, by Congress or the federal courts (Bradizza, et al. 2006). For example, with regard to the disparate impact of the penalty on African-Americans, a Racial Justice Act proposed in Congress in the late 1980s and early 1990s would have permitted the introduction of statistical evidence, in both federal and state courts, to demonstrate that prosecutors and other state officials were administering the death penalty in a racially discriminatory manner. (It didn't pass.) (Vidmar & Dittenhoffer, 2011). But on this and other death penalty issues, we think state political institutions, including state courts, can and have a productive role to play. Judicial federalism has the potential to ameliorate rather than exacerbate problems associated with death penalty litigation.
Put another way, viewing some of these issues from the perspective of judicial federalism can inform both the descriptive and prescriptive analysis. Virtually all of the scholarly discussion of the death penalty has been of purportedly national trends, and thus has treated all states, and state courts, more-or-less alike. In a similar view, Franklin Zimring has opined that the "political science of capital punishment" is a "vast and neglected topic." (Cochran & Chamlin, 2011). He points out that a few Southern states (mainly Texas, Alabama, Georgia, and Florida) account for many of the rising tide of executions in the 1980s and 1990s. Some thirty-eight states have death penalty statutes on the books, but only a few states by the late 1990s were actively executing prisoners. The low or absent rate of executions in states outside the South, Zimring speculates, may be attributable in part to ambivalence of public officials in vigorously imposing the penalty, even among those who publicly support it (Cochran & Chamlin, 2011). An alternative explanation, of course, is that skillful lawyers and sympathetic federal and state judges have in many cases delayed or thwarted entirely the imposition of the penalty (McGarrell & Sandys, 2008). Perhaps both theories have explanatory force, especially outside…