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.
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