|
|
|
|
Steve Smith's insightful account of the "politics of death" is organized into three broad points. First, he notes that the Supreme Court, in trying to regulate (and, briefly, to abolish) the death penalty, perversely reignited a pro-capital punishment politics that had been on the wane through the 1960s. Second, he describes how the political process—at least, since the 1970s—has made moderation on the death penalty infeasible, so that capital punishment policy grows ever harsher but rarely more moderate or restricted. Finally, he describes the Court's new approach to capital punishment regulation. Instead of tinkering with mechanisms to guide jury and judge discretion in death sentencing and thereby bring some distributive justice to capital punishment implementation, the Court has turned to a two-pronged approach: restricting death eligibility under the Cruel and Unusual Punishment Clause and revitalizing capital defense representation under the Sixth Amendment counsel doctrine inaugurated in Strickland v. Washington.
I want to suggest that the politics of death are not quite as bleak as Smith believes them to be, and so I will focus on the second part of his thesis and highlight some significant developments in the moderation of capital punishment policy achieved through the democratic process. I will follow that account with a brief response to Smith's third part, where I have greater pessimism than Smith seems to have about the significance of the Court's recent forays into capital punishment regulation.
[More]
|
|
|
|
|
|
|
|
|
|
|
By Adam M. Gershowitz
In his insightful new paper, The Supreme Court and the Politics of Death, Professor Stephen Smith analyzes how the Supreme Court has floundered for more than three decades in a failed effort to eliminate the arbitrariness of the death penalty. As Professor Smith explains, the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts. The general public believes capital punishment is reserved for the most heinous offenders while, in reality, the system is skewed in favor of death for those who have had the toughest lives and the worst lawyers. It is enough to leave an observer of the Court utterly despondent.
Yet Professor Smith sees cause for optimism in the Court's renewed focus on substantive proportionality guarantees—namely the bans on executing the mentally retarded and juveniles—and the imposition of more rigorous standards for effective assistance of counsel. While I am in full agreement with his diagnosis of the problem, I part company with Professor Smith's view that the Court's latest approach might succeed where previous efforts have failed. To overplay a metaphor, the Court's latest jurisprudence amounts to the Court dipping its foot in the water and making some waves. Those waves might be bigger than the ripples in years past, but they are nevertheless small and inconsequential. Moreover, the Court's decisions keep the public focused on the actions of the judiciary and allow legislators to skate by without taking responsibility for the systemic flaws that pervade capital punishment. If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility. The Court's categorical exclusions and renewed focus on effective assistance of counsel follow neither of these approaches and thus stand little chance of eliminating the politics of death.
[More]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By Paul G. Cassell and Joshua K. Marquis
The primary thesis of Professor Stephen Smith's provocative article The Supreme Court and the Politics of Death appears to be that the death penalty is a political tool used by ambitious prosecutors and that—despite wide public support for capital punishment—it is apparently the task of an enlightened judiciary to move towards its restriction or even its functional abolition. In this brief response, we beg to differ. Capital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support. Professor Smith should be more trusting in the outcome of democratic processes.
Professor Smith begins his interesting article with what he identifies as a conundrum. Why is it, he asks that the "rest of the Western world" has abolished capital punishment "as an ordinary criminal sanction" while America continues to preserve it? The answer is simple: America responds to the will of the people more than other countries do. In short, America is more of a democracy.
[More]
|
|
|
|
|
|
|
|