From an inauspicious beginning in which the Court was unable to come up with a majority opinion, the Supreme Court has struggled, using the common law method of case-by-case adjudication, to define and develop a coherent body of capital sentencing law that will permit the death penalty to be exacted. There is no question that the body of law that has evolved over so many years is more enlightened and presents less risk of the arbitrary and capricious assessment of the death penalty than the law that obtained before 1972. But the attendant costs have been dreadful.

The time and expense involved in implementing an execution is an obvious cost, as is the risk of killing the innocent. Judge King adds a more subtle argument to the mix:

Too, the injustice of executing capital defendants under laws that were for so many years undeveloped and in flux is troubling. Think about it. My court's opinion in Graham, which unacceptably narrowed Penry's requirement of giving the jury a vehicle, a special issue, by which it could express its judgment about the defendant's moral culpability, was on the books for twelve years before the Supreme Court struck it down. During those twelve years, many defendants were executed without the constitutionally-required judgment by the jury on whether the defendant was sufficiently morally culpable to be sentenced to death. That is not to say that those defendants were innocent of the crimes for which they were convicted. But it could certainly lead one to ask why, if the jury's judgment about moral culpability was constitutionally required, so many went to their deaths without it.

Judge King encouraged Catholics to take political action against the death penalty.