CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, May 9, 2011

Smith on Localism and Capital Punishment

Smith stephen Stephen F. Smith (University of Notre Dame) has posted Localism and Capital Punishment (Vanderbilt Law Review En Banc, Vol. 64, p. 105, 2011) on SSRN. Here is the abstract:

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.

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