Why Death Is Different

The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.

One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:

Each of us is more than the worst thing we've ever done.

And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.

And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.

And that's why death is different (in this regard).


*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.