Federalism and Its Discontents

Abstract

Abstract A Chapter on federalism seems more appropriate for a textbook on government than for an attempt to explain the extraordinary pattern of executions in the United States. But the system of allocating power to different levels of government in the United States is one defining element of the unique policy environment of capital punishment. The current system of processing capital cases is incomprehensible without information on federalism. And the large and systematic differences between states in execution policy are also important clues to identifying what sets America apart on the death penalty. So any serious study of American capital punishment must do its homework on the federal system of government and its manifold impacts on capital punishment policy. But the capital punishment arrangement discussed in this chapter is certainly not garden-variety American federalism. There is little resemblance between the way that federal and state systems govern together on death penalty cases and the pattern of federal/state coordination on issues such as education, health care, highways, or water pollution. In part, these special death penalty problems have been generated because the federal controls that can be enforced only by federal courts must be superimposed on a system of criminal law that was complete and self-contained at the state level. But the conflicts and ambivalence that are caused by the death penalty itself are also a major feature of the dysfunctional present of the death penalty in the American federal system.