For the government to keep executing people, the legal system basically has to allow for a certain amount of racism and "oops" moments.
SSRN · March 13, 2026 · 6282620
Why it matters
Legal scholars usually argue the death penalty should be reformed to follow the rule of law. This paper argues they are fundamentally incompatible: if you strictly applied the rule of law, the death penalty would naturally die out, meaning its survival depends on the legal system deliberately failing.
From the abstract
<p><span>For this law review symposium “The Rule of Law Under Pressure,” my focus is the rule of law under pressure in the state’s most powerful moment: when it puts people to death. My claim (a series of observations, more accurately) is that the death penalty and rule of law have proven to be rather irreconcilable over time, and when that conflict has come to a head, it is the rule of law, not the death penalty, that has most often given way. To make my point, I give five examples of what the