The Supreme Court and the Politics of Death

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court’s vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians�legislators, prosecutors, and governors�have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.

The Supreme Court has recently begun to chart a different�and more promising�approach to death penalty reform. In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death’s politics. These rules determine the type of offenses for which death is a “cruel and unusual” sanction (the Eighth Amendment’s capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment’s guarantee of effective assistance of counsel). Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process. 

A Doctrine of Full Faith and Credit

Imagine a judgment from a California state court in which a plaintiff (“P1”) prevails in a civil suit against the defendant (“D”). A second plaintiff (“P2”) brings a related suit in Alabama against D and seeks to estop D from relitigating issues found adverse to D in California. Given the conflict between the preclusion laws of Alabama and California, may the Alabama court choose which state’s law it will enforce? Or does federal law require Alabama to give the California judgment the same preclusive effect that the judgment would have in California? The answers to questions such as these have considerable practical importance. Cost-conscious litigants determine how much they are willing to spend based on the associated risk of loss or probability of gain in any litigation. Uncertainty surrounding the judgment’s preclusive effect will change that analysis. Unfortunately, there is currently no consistent answer to these questions. This Note will argue for a broad understanding of the implementing statute’s scope. This understanding is a clear rule that courts can easily follow, as opposed to a policy-based standard that is difficult to implement. This Note will present a doctrinal theory that both supports such a reading and provides certainty in the application of the implementing statute.

Finding the Proper Balance: A Look at the Continuing Development of Campus Suicide Policies

This Note will address the difficulties that university officials have faced in recent years when addressing suicidal students and the mixed signals that have been sent by courts and legislatures regarding a university’s duties toward suicidal students—signals that influence the development of university suicide policies, and ultimately push many colleges toward a conservative, hands-off course 
of action. This Note will suggest an alternative model for delineating the legal duties of universities with respect to suicidal students—a model that attempts to balance the privacy and civil rights of the suicidal student, the need for suicidal students to receive proper treatment, and the liability concerns of universities. The model emphasizes the importance of using campus suicide policies to push students toward getting the help and treatment they need to cope with their mental health problems. At the same time, the suggested model would allow university officials to maintain control over determining whether a student is permitted to remain on campus.