Localism and Capital Punishment
Stephen F. Smith
Notre Dame Law School
April 25, 2011
Vanderbilt Law Review En Banc, Vol. 64, p. 105, 2011
Notre Dame Legal Studies Paper No. 11-22
Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities.
As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism in the death penalty. Localism, properly viewed, is not entirely negative and may actually be quite positive. Second, and more fundamentally, there is every reason to believe the “politics of death” would operate, at the state level, to defeat the salutary purposes of Professor Gershowitz’s reforms. Thus, as intriguing as it is, the prospect of statewide enforcement holds little promise as a means of rationalizing the administration of the death penalty.
Number of Pages in PDF File: 18
Keywords: Furman, capital punishment, death penalty, localism, local government, cruel and unusual punishment, jury, vicinage, prosecutorial discretion, effective assistance, right to counsel, equal protectionAccepted Paper Series
Date posted: April 25, 2011 ; Last revised: July 7, 2011
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