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The Supreme Court and the Politics of Death

79 Pages Posted: 1 May 2007  

Stephen F. Smith

Notre Dame Law School

Date Written: March 22, 2007


This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less reliable determinations of who truly does deserve the ultimate sanction.

The Supreme Court has recently begun to chart a different - and more promising - approach to death penalty reform. In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death's politics. These rules determine the type of offenses for which death is a "cruel and unusual" sanction (the Eighth Amendment's capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment's guarantee of effective assistance of counsel). Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.

Keywords: death penalty, capital punishment, Strickland, Atkins, Roper, proportionality, cruel and unusual punishment, effective assistance, ineffective assistance, strickland, sixth amendment, eighth amendment, clemency, commutation, innocence, furman, aggravating, mitigating, aedpa, antiterrorism

Suggested Citation

Smith, Stephen F., The Supreme Court and the Politics of Death (March 22, 2007). Available at SSRN: or

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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