This comment on Steve Smith's recent article, The Supreme Court and the Politics of Death, draws attention to data and political developments that suggest that American politics is not a one-way ratchet in the direction of severity that makes the death penalty an immutable feature of American criminal justice. Some of those features are well known, such as successful abolition efforts recently in two state legislatures; others are less so, such as less visible legislative action to curtail executions and improve capital litigation in various ways. This variability in capital punishment politics, across states as well as over time, complicates claims about the need for a stronger Supreme Court role in improving death penalty administration, which Smith rightly finds to have been largely unsuccessful. I also present reasons for skepticism about the Court's recent foray into improving capital litigation by strengthening standards for adequate defense counsel. Those standards ultimately depend on legislative action to be effective, and the same variability we find elsewhere among states on capital punishment issues should make one pessimistic that states will move consistently to make those new standards meaningful.

Darryl K. Brown, The Multifarious Politics of Capital Punishment: A Response to Smith, 94 Virginia Law Review in Brief, 57–64 (2008).
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