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.
Sept 3, 2013
94 Va. L. Rev. Online 57