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May 6, 2008

A day to focus on an execution and politics

While most of the media and political world will be focused on voting in Indiana and North Carolina, this new AP article spotlights that death penalty observers will be focused on another state:

Georgia moved forward with preparations to execute a man convicted of killing his girlfriend, who on Tuesday night could become the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injection.  Barring a last-minute reprieve from the courts, William Earl Lynd will be put to death at 7 pm, making him the first prisoner executed since September, when the high court took up a challenge to lethal injection and effectively halted all executions nationwide for seven months.

For anyone who might be eager to combine their interests in politics and the death penalty, I noticed this new article in the April 2008 Virginia Law Review titled "The Supreme Court and the Politics of Death."  Here is the abstract:

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 deserves 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.

May 6, 2008 at 07:20 AM | Permalink


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The focus of this type of report disturbs me.

To me, the fundamental problem is that it is so difficult and expensive to put a murderer to death.

I understand that there are cases where there is doubt about guilt. "Beyond a reasonable doubt" can unfortunately lead to wrongful convictions. Therefore, great care needs to be taken to be sure that the condemned person is in fact guilty.

But what about, for example, a case where the murder is caught on videotape, the images are of sufficient quality that it is easy to recognize the people on the tape, and the evidence from the tape is backed up by other physical evidence, such as DNA and/or ballistics.

In my view, in such a case, it would be just to apply the death penalty. Lengthy litigation about it would simply be wrong and offensive. And it should not be necessary to spend millions of dollars litigating the issues.

I also have a difficult time with concerns about the fairness of the DP. Surely intentionally taking the life of an innocent person is the ultimate unfair act. As long as the condemned is guilty of that, putting them to death is perfectly fair. It should not matter if another murderer somehow avoided the DP for a murder that was more heinous. In a country as large as the US, such arguments will be endless, and because of the delays they cause, they defeat the purpose of having the DP in the first place.

Posted by: William Jockusch | May 6, 2008 7:50:12 AM

Prof. Smith's article comes recommended twice over by Prof. Berman.


Posted by: | May 6, 2008 12:42:40 PM

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