John D. Bessler is the husband of United States Senator Amy Klobuchar and teaches at the University of Baltimore School of Law.  He is a terrific guy and a great scholar.

Professor Bessler has posted Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence (American Criminal Law Review, Vol. 49, No. 4, Fall 2012, pp. 1913-1943) on SSRN.

Here is the abstract:

This Essay examines America’s death penalty forty years after Furman and provides a critique of the Supreme Court’s existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court’s most vocal proponents of “originalism” conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association (“ABA”) has yet to fully weigh in against the death penalty, though it has taken notice of the bevy of problems associated with it. The ABA’s two death penalty-related projects, as well as the justice system’s considerable experience with capital cases, plainly show that the reality of the death penalty’s administration differs substantially from consideration of capital punishment in the abstract.