What’s Wrong with Democracy? A Critique of ‘The Supreme Court and the Politics of Death’

Abstract

The primary thesis of the 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 functional abolition. This Article provides a critical response to that thesis. 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. The Article confronts the mistaken idea that America is behind the rest of the Western world when it comes to popular support of the death penalty. It also attacks the assertion that prosecutors use the death penalty to leverage their careers to higher political office. The Article ultimately argues that, in a democracy, the legislative process is the appropriate arena for the death penalty debate, even when it produces results the legal elite find disagreeable.

Keywords: Victim, Crime Victim, Impact Statements, Criminal Justice, Sentencing

JEL Classification: K14, K41, K42