Problem 1: Professor McAdams of Marquette University argues that abolitionists have effectively created a catch-22: they fight for greater protections for defendants at trial and during appeal, and argue at the same time that death penalty prosecutions are too expensive to be justified. Is Professor McAdams right? What is the proper baseline of rights for assessing the costs of capital punishment?
Problem 2: Is Potter Stewart's analogy between a death sentence and being struck by lightning appropriate and convincing?
Problem 3: Most Americans consider the jury system to be a virtue of the criminal justice system. Juries have the potential to nullify prosecutorial overreaching. This occasional exercise of mercy is arbitrary, though most consider it desirable. Is the possibility of mercy in death penalty cases more important than in ordinary criminal cases?
Problem 4: Relatedly, is arbitrariness in capital sentencing more problematic than in non- capital criminal cases?