Get in the Game or Get out of the Way: Fixing the Politics of Death

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.