Responsibility in Capital Sentencing

Abstract

The recent evidence of innocents on death row has led to a call to revisit the legal doctrine governing capital punishment. But abandoning that doctrine would be the wrong response. It fosters individual responsibility in capital sentencing by placing the participants in the process - from the legislator to the prosecutor, trial judge, and jury and ultimately to the appellate judge - in an environment in which their sense of responsibility is broadened compared to earlier capital punishment systems. By strengthening the sense of responsibility of those inside the process, we heighten our trust in their decision. Drawing on psychological research, empirical data from juror interviews, and the social theory of Vaclav Havel, this article suggests that individual responsibility - rather than the goals advanced by the Court itself (consistency and individualization) - is the key to a moral capital sentencing process. Although modern doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. This article proposes two concrete ways to improve existing doctrine: (1) require the trial judge to explain the sentencer's role to the jury in the narrative voice, a way of speaking associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences, bringing the responsibility of appellate judges in capital cases into line with the responsibility they bear in other constitutional cases.