Death penalty litigation that reaches the Supreme Court now causes at least as much consternation as hope among opponents of capital punishment. Simply not losing rights that once were considered secure can be tantamount to victory in capital cases decided by the Court,and few defendants and opponents of capital punishment expect much more. It was not always so. Hopes were once high that the Supreme Court, and the federal courts generally, would effectively bring an end to capital punishment in America.
That prospect is now remote, at best. Death row populations are sky rocketing and executions are on the rise. Half of the federal judiciary has been appointed by a President who has largely fulfilled his promises to name law and order and strict constructionist judges to the bench.\u27 A majority of the Justices on the Supreme Court have not chosen to give an expansive interpretation to the federal constitution in capital cases. If even a small measure of the success that was enjoyed in the federal courts in the 1960s and early 1970s is to be regained,litigation against the death penalty must reflect different strategies and be pursued in different forums
