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Localism and Capital Punishment

18 Pages Posted: 25 Apr 2011 Last revised: 7 Jul 2011

Stephen F. Smith

Notre Dame Law School

Date Written: April 25, 2011


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.

Keywords: Furman, capital punishment, death penalty, localism, local government, cruel and unusual punishment, jury, vicinage, prosecutorial discretion, effective assistance, right to counsel, equal protection

Suggested Citation

Smith, Stephen F., Localism and Capital Punishment (April 25, 2011). Vanderbilt Law Review En Banc, Vol. 64, p. 105, 2011; Notre Dame Legal Studies Paper No. 11-22. Available at SSRN:

Stephen F. Smith (Contact Author)

Notre Dame Law School ( email )

361 Mendoza College of Business
Notre Dame, IN New South Wales 46556-5646
United States

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