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The Death Penalty
We have already seen how substantive criminal law has been influenced by the possibility of the imposition of the death penalty. Pennsylvania created degrees of murder in 1794 in order to ensure that the death penalty was reserved for those most deserving of the law's ultimate penalty.
That is a task that courts and legislatures continue to wrestle with to this day. The Supreme Court has rejected state death penalty statutes that purport to impose the death penalty automatically, even for narrow categories of crimes, as well as those that leave the imposition of capital punishment to the sole discretion of the trier of fact. As a result, states are required to guide the discretion of decisionmakers while allowing them opportunities for mercy. This has, as you might imagine, been a process of trial and error.
As the materials below make clear, the death penalty is in a transitional phase at the moment. Its use has dropped significantly in recent years, with federal policy swinging wildly back and forth. These materials are designed to give you understanding of the current issues relating to the imposition of the death penalty; of course, they can only scratch the surface.
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