Dead Certainty: The Death Penalty and the Problem of Judgment 9781503626829

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dead certainty

ultural Memory in the resent Hent de Vries and Mieke Bal, Editors

DEAD CERTAINTY The Death Penalty and the Problem of Judgment

Jennifer L. Culbert

stanford university press stanford, california

Stanford University Press Stanford, California © 2008 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Culbert, Jennifer Louise. Dead certainty : the death penalty and the problem of judgment / Jennifer L. Culbert. p. cm.—(Cultural memory in the present) Includes bibliographical references and index. ISBN 978-0-8047-5745-4 (cloth : alk. paper)— ISBN 978-0-8047-5746-1 (pbk. : alk. paper) 1. Capital punishment—United States. 2. Capital punishment—Moral and ethical aspects—United States. 3. Judgments, Criminal—United States. I. Title. HV8699.U5C86 2008 364.660973—dc22 2007029928 Typeset by Thompson Type in 11.5/13 Adobe Garamond.

To Mama

Contents

Acknowledgments 1. 2. 3. 4. 5. 6. 7.

Judgment and Metaphysics: American Capital Punishment Jurisprudence and Friedrich Nietzsche’s History of an Error

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The Promise of Reliability and the Twin Objectives of the Capital Punishment System

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The Consolation of Common Sense in the Regulation of Capital Punishment

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The Cockcrow of Positivism: “Normal” Culpability in Capital Punishment Jurisprudence

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The Impact of Payne: The Return of Sense to Capital Punishment Jurisprudence

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The End of Error: DNA Technology and the Decision Not to Decide in Capital Cases

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The Experience of Judgment

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Notes Bibliography Index

165 211 223

Acknowledgments

This book would not exist but for the inspiration and support of many people, first and foremost John Tinkler, Jane Bennett, and Marianne Constable. Thank you all. I would also like to thank Richard Doyle, Frederick Dolan, Felipe Gutterriez, Hannah Pitkin, and the late Michael Rogin for their early influence and encouragement. With Susan Courtney and Patricia Reilly, I had the best dissertation group in the world; I still miss it. I would not have survived the process of writing without the care and intellectual companionship also of Lisa Garbus, David Wittenberg, Helen Thompson, Colene Bentley, and Nasser Hussain. I am forever indebted to my friends and colleagues Austin Sarat, Martha Umphrey, Tom Dumm, Timothy Kaufman-Osborn, William Connolly, Richard Flathman, Joel Grossman, Jeffrie Murphy, David Theo Goldberg, Mona Lynch, Adam Thurschwell, Peter Fitzpatrick, Roger Berkowitz, Linda Ross Meyer, Peter Jelavich, Maura Tumulty, and Hent de Vries. Thanks also to Rebecca and Eric Friedenwald-Fishman, John Rehm, Madelaine Adelman, Alison Young, Katrin Pahl, Todd Meyers, Gloria Golden, and Janet Cohen. And thanks always to Diana Hall, Esther Culbert, Sarah Culbert, Emily Culbert, and Ba Culbert, as well as John Nusser, Adam Bailey, Benjamin Bailey, and Noah Bailey, for their unconditional love and wonderful Christmas presents. Versions of two chapters of the book have appeared in print elsewhere and are used here with permission. Chapter 4 was published as “The Sacred Name of Pain: The Role of Victim Impact Evidence in Death Penalty Sentencing Decisions,” in Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor: The University of Michigan Press, 2001); Chapter 5 appeared as “Beyond Intention: A Critique of ‘Normal’ Criminal Agency, Responsibility, and Punishment in American Death Penalty Jurisprudence,” in The Killing State: Capital Punishment in Law, Politics, and Culture, ed. Austin Sarat (New York: Oxford University Press, 1999).

dead certainty

1 Judgment and Metaphysics: American Capital Punishment Jurisprudence and Friedrich Nietzsche’s History of an Error We never experience what is happening by ascertaining through historical inquiry what is “going on.” As this expression tells us very well, what is “going on” passes before us in the foreground and background of the public stage of events and varying opinions. What happens can never be made historiologically cognizable. It can only be thoughtfully known by grasping what the metaphysics that predetermines the age has elevated to thought and word. —Martin Heidegger, Nietzsche Vol. III 1. The first moment of the history: The real world, attainable to the wise, the pious, the virtuous man—he dwells in it, he is it. (Oldest form of the idea, relatively sensible, simple, convincing. Transcription of the proposition “I, Plato, am the truth.”) —Friedrich Nietzsche, Twilight of the Idols

Unbelievable as it may seem, prior to 1968, the Supreme Court rarely considered death penalty cases; as death sentences had been imposed throughout the history of the United States and were widely accepted, as far as the Court was concerned capital punishment did not violate the Constitution.1 However, beginning in 1968, the Court started hearing cases that challenged various aspects of the capital punishment system, and since 1972 the Court has repeatedly revisited the issue. In 1972, the

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Supreme Court ruled in Furman v. Georgia that the death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment because under existing death penalty statutes death sentences were imposed in an arbitrary manner.2 In brief, the Court found that death is not an inherently cruel sentence but that the process by which it is imposed renders it so. In response to that ruling, state legislatures throughout the United States immediately started revising their death penalty statutes with an eye to rationalizing the process and making the outcome more reliable. So it was that four years after finding capital punishment violated the Eighth Amendment, the Court was able to rule that death sentences no longer violated the Constitution.3 With this ruling the question of the constitutionality of capital punishment in the United States would seem to have been settled once and for all. The contrary has been the case. Since 1976 the Supreme Court has been repeatedly challenged to legitimate the imposition of death sentences in capital cases. It is unclear why the Court continues to take up this challenge in the United States, particularly when so many of the democratic countries with which the United States compares itself have simply given up and abolished capital punishment. Various theories of “American exceptionalism” seek to explain why the death penalty still exists in the United States today,4 the most compelling of which emphasize the populism of American political institutions and political culture.5 Franklin Zimring and Gordon Hawkins, for instance, argue that capital punishment was not abolished in the United States in the 1970s because the only political institution in a position to hold out against loudly expressed popular opinion was the Supreme Court, and the Court was not willing to stand firm the way that responsible agents and institutions were in European countries.6 The populism that seems to ensure the persistence of capital punishment in the United States today does not, however, explain why the Court is constantly considering new grounds for legitimating the imposition of death sentences. Despite its best efforts, over the past thirty years the Court has or has been compulsively returned to capital punishment. Certainly, the fatal and final character of the penalty may be held partly responsible for the demand capital punishment makes of the Court’s attention. As one observer suggests, capital punishment is where “the highest violence, that over life and death, occurs in the legal system.”7

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The Supreme Court has also explicitly endorsed the idea that “death is different.”8 Although death penalty proponent Ernest van den Haag argues that the imposition of capital punishment is unfairly subject to more scrutiny than any other punishment imposed by the criminal justice system,9 the Court says that given the unique severity and irrevocability of death as a penalty it is constitutionally obliged to be “particularly sensitive to insure that every safeguard is observed.”10 Nevertheless, the fact of the severity of the death penalty does not completely explain why the Court so often agrees to consider the issues raised in, by, and for capital punishment cases.11 In this book, I argue that the Court constantly takes up these issues because it is constantly challenged to find a way to sanction and ultimately validate final judgments in modern society.12 Within the limits of human fallibility, judgments about guilt and innocence, life and death, are made and carried out. The Court must sanction and validate these final judgments. Examining how it does so, we can see how absolute judgments are authorized in a modern liberal state. Following Max Weber, I take a modern state to be defined as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”13 This definition famously identifies the state with relations of power rather than with the pursuit of particular essential or immanent ends, and it emphasizes the significance of discourses of legitimacy and justification for the structure of domination.14 The qualification of the modern state as a liberal one stresses again the expectation that any domination or demands of obedience must be justified. This task is rendered more difficult by the fact that liberalism, broadly construed, subscribes to the view that what individuals value is a function of their personal experiences, so that there are many competing and sometimes incommensurable views of what constitutes the good or the just within society. Consequently, what may serve as an “inner justification” for domination or obedience in one instance may not serve at all in another. In such a context, what I call “the problem of judgment” emerges. Under conditions where shared criteria for determining what is good or just are lacking, we judge, and not just for ourselves but for others.15 How we understand the validity of the claims we make, and how we expect others to accept and respect these claims (particularly when these claims may lead them to harm) is the question with which this book is concerned.

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To answer this question, to see how judgment authoritatively takes place in a modern liberal state, in the book I examine the language with which the Supreme Court simultaneously limits and defends the practice of sentencing people to death. However, I examine this language not only for the purpose of showing how the Supreme Court confronts the problem of judgment. Taking the Supreme Court’s capital punishment jurisprudence as an “exemplary example” of the process by which specific events or particular people are apprehended, critically examined, and finally evaluated, I examine the language with which the process is described, prescribed, criticized, and refined in order to reflect on the practice of judgment itself. Thus, in what follows I do not simply review a number of death penalty cases with special attention to the way in which they identify and meet various challenges to the legitimacy of the practice of capital punishment. In my readings of these cases, I seek to demonstrate how a particular conception of judgment informs our practice of judgment and how, as we engage with the problem of judgment, the limits of this conception are revealed. I frame the analysis of this language in terms drawn from Friedrich Nietzsche’s brief history of metaphysics in Twilight of the Idols.16 I use terms drawn from Nietzsche’s work for three reasons. First, the problem of judgment is a metaphysical problem. Metaphysics is the philosophical study of the fundamental nature of reality and being. When we look for common grounds or shared criteria to justify claims we make about, of, and for others, we search for categories or reasons that will legitimate our claims by virtue of their undeniable reality and irrefutable truth. The search for such categories or reasons reveals our speculations not only about the character of truth and the nature of knowledge, but about the essence of being itself. Nietzsche’s history of metaphysics presents different “stages” or moments in that history, which correspond to different theoretical frameworks that reflect and enable specific conceptions of the truth. Nietzsche’s concise summaries of these distinct frameworks are helpful in the characterization of particular moments in the evolution of the Supreme Court’s capital punishment jurisprudence. Second, the “history” of metaphysics that Nietzsche provides is presented without any indication of an original cause or catalyst. Nor does Nietzsche offer in his history any reason for the decline of one stage and the emergence of another. The history simply records the coming into be-

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ing and the passing away of different stages. Thus, a succession of moments is presented, but they are not and need not necessarily be related to one another in some historically determined manner.17 Following Nietzsche’s example, I do not speculate about an innate cause of the Supreme Court’s 1968 decision to start hearing cases concerning the capital punishment system. Nor do I suggest or defend an argument about the historical necessity of the succession of Supreme Court opinions on the death penalty since 1972, when the Supreme Court first criticizes sentencing decisions in capital cases for failing to correspond to a single, coherent rationale or principle. Rather, I base my claims about the character of modern death penalty jurisprudence on observations of the Court’s response to particular, contingent, historically circumscribed arguments. Finally, in what follows I argue that when the Court criticizes the death penalty system for failing to reflect a stable principle, it commits an error similar to the one Nietzsche identifies with the beginning of the history of metaphysics. This is the third reason I frame my analysis of the Court’s capital punishment jurisprudence in terms drawn from Nietzsche’s history of metaphysics. According to Nietzsche, that history begins with a philosophical error, the positing of an eternal, absolute, immutable essence as true Being against which life, through reason, is measured and found wanting. I claim that in its reasoning, the Supreme Court likewise implies the presence of an always already existing ground according to which sentencing decisions may be evaluated. More than this, I claim that the Court forgets that to judge, as Philippe Nonet observes, is to speak or say the law (in Latin, ju-dicare); it remembers only that judgment, as defined by Kant in The Critique of Judgment, is the act of “subsuming under rules, that is, of distinguishing whether something falls under a given rule or not.”18 I claim that the Court’s selective remembering inaugurates the modern history of American death penalty jurisprudence since 1972, as the Supreme Court has tried to ascertain or establish once and for all a common sense of the good, a shared understanding of a universal law, or a general intuition about a sense of purpose in nature under which we might subsume a particular case and know we have made a valid final decision. This observation serves as the starting point not only for my discussion of U.S. death penalty jurisprudence but also for my own critique of the practice of judgment. In the rest of this chapter, I show how judgment in capital cases is first framed as a problem in Furman v. Georgia. As I indicated above, in

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Furman the Court finds that death is not an inherently cruel sentence but that it is imposed as punishment in criminal cases so arbitrarily—that is to say, so infrequently and unsystematically—that it becomes a cruel and unusual penalty. In my reading of Furman, the justices are unable to discern in the decision they review any evidence of a guiding rationality, and it is the absence of this rationality rather than the apparent senselessness of any particular sentencing decision that undermines the Court’s faith in the justness of the capital punishment system. As a brief glance back at the Supreme Court’s opinion in McGautha v. California (1971) quickly makes clear, there was a time when, in order to be authoritative, sentencing decisions in capital cases did not need to refer to principles or truths outside of those asserted by themselves.19 With Furman, I argue, such sentencing decisions are suddenly found to be deficient because they may not be traced back to any external or “real” source of authority or certainty. The next part of the chapter lays out Nietzsche’s history of metaphysics. The following section turns to the cases that inaugurate the modern era of capital punishment in the United States; analyzing the jurisprudence of capital punishment in terms of Nietzsche’s history, it demonstrates how the problem of judgment “begins.” The final part of the chapter indicates how the history of this error will unfold in the chapters that follow.

I. Nietzsche’s “History of an Error” Nietzsche’s history of metaphysics is called “How the ‘Real World’ at last Became a Myth: History of an Error.” The error alluded to in the title is the positing of an eternal, absolute, immutable essence as the actuating principle and primal element (arché ) of philosophy, which metaphysics, through reason, seeks to discover, reveal, or reclaim.20 Philosophy’s “supreme concepts”—“what is, the unconditioned, the good, the true, the perfect”—partake of this timeless and unbegotten essence.21 They have their basis in “the lap of Being, the intransitory, the hidden god, the thingin-itself.”22 As Nietzsche observes, according to this philosophy, “What is, does not become ; what becomes, is not.”23 Thus, the supreme concepts are always already given. They do not grow, procreate, and die.24 That which is does not change.

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The narrative of Nietzsche’s own history of metaphysics is characterized by the opposition of what is—being—and what is not—becoming.25 According to Nietzsche, philosophers cling to the idea of what is. Or rather, philosophers try to grasp what is but fail and then look for reasons to explain their inability to comprehend the “thing-in-itself.” In Twilight of the Idols, Nietzsche suggests that metaphysics has been preoccupied with producing an explanation of this failure, even while it continues to affirm the quest for possession of being.26 At the first stage, says Nietzsche, philosophers invent the “real world.” Blaming the senses for their inability in the actual world to perceive what is (for their senses provide evidence only of plurality and change), let alone to possess it, philosophers construct a world where they can escape “from sense-deception, from becoming, from history, from falsehood.”27 This world is referred to as the “real world.” From this real world, that which relies on the senses is expelled. Thus, only those who are willing to deny the body and take up dialectics—the formal practice of discussion and reasoning to expose false beliefs and elicit truth—may have access to it. Nietzsche identifies this stage with Socrates and Plato. According to Nietzsche, Socrates persuades the Greeks that “reason = virtue = happiness.”28 This equation goes against everything the ancient Hellenes instinctively know; in ancient Greece, Nietzsche says, one does not articulate reasons but embodies command.29 Socrates manages, however, to convince the Greeks that logical argument is superior to physical nobility, and that mastery of one’s inclinations is better than acting on one’s instincts. How is such a physically and instinctually ugly man able to seduce the Hellenes into embracing the tyranny of rationality? According to Nietzsche, Socrates is ugly but he is also a great erotic;30 he appeals to the Greek agonal instinct and keeps his audience fascinated with a new kind of swordplay, the thrust and parry of dialectics. But the fact that Socrates can engender such fascination with his practice of challenging received wisdom and refusing to accept the truth of appearances is, for Nietzsche, also a sign that Athens is no longer what it once was. Nietzsche says the city is on the verge of chaos: “Everywhere the instincts were in anarchy; everywhere people were but five steps from excess: the monstrum in animo was the universal danger.”31 Only in such a context would Socrates’ “personal art of selfpreservation” be embraced. Rather than perish of their instinctual disorder,

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the Greeks choose life and become “absurdly rational.” Desperate to restore health and happiness, they emulate Socrates and take the cure he prescribes: “the harshest daylight, rationality at any cost, life bright, cold, circumspect, conscious, without instinct, in opposition to the instincts.”32 Nietzsche summarizes this moment as follows: 1. The real world, attainable to the wise, the pious, the virtuous man—he dwells in it, he is it. (Oldest form of the idea, relatively sensible, simple, convincing. Transcription of the proposition “I, Plato, am the truth.”)33

At this stage in the history of metaphysics, the real world is imagined as within reach of those who, like Socrates, willingly renounce the satisfaction of bodily needs and desires in order to be once and for all in the world that is true.34 If one is able to master one’s instincts and break one’s habits of obedience to tradition and customary authority, it is possible to see through the appearances of this world and to contemplate the being of things-in-themselves and to join them. Several of the features of this whole history of error that are most useful to me in my discussion of the jurisprudence of capital punishment in the United States are apparent at the very first stage. Consequently, before returning to my exposition of Nietzsche’s text, let me indicate what they are. First, at the first stage it is clear that what causes the Greeks to take Socrates seriously, that is to say, what makes it possible for someone like Socrates, a member of “the rabble,” to capture the attention of aristocratic circles in Athens, is never identified. Nietzsche does not concern himself with what causes these circles to degenerate and the instincts to become mutually antagonistic; he is interested only in that they do.35 Similarly, in my analysis of the stages of the U.S. Supreme Court’s death penalty jurisprudence, I do not seek to explain what causes capital punishment to become a significant issue for the Court; rather, I am interested in how it becomes a significant issue for the Court, and what this “how” tells us about our practice of judgment. A second feature of Nietzsche’s history of metaphysics that is evident in the first stage is the ambivalent character of the “decline” this history charts. Nietzsche states explicitly that the great sages are “declining types,” too weak willed to impose moderation on their desires, too degenerate to

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resist reacting to stimulation without the assistance of some radical prop.36 In Socrates’ case this radical prop is rationality. With it, Socrates is indifferent to the demands of his body and the entreaties of his friends; practicing philosophy, he is able to withdraw from the world of appearances and tranquilly contemplate things as they really are. However, Nietzsche claims, Socrates’ dependency on reason betrays the fact that Socrates does not elude decadence with dialectics. On the contrary, this “expedient” is an expression of the strength of Socrates’ fear of chaos and disorder, illusion and death; it is a manifestation of his degeneracy, not a means back to virtue or health or happiness.37 Nevertheless, as I have already noted, Nietzsche suggests at the same time that Socrates (and his fellow Athenians) really had no other choice if they were to survive. “The fanaticism with which the whole of Greek thought throws itself at rationality betrays a state of emergency: one was in peril, one had only one choice: either to perish or—be absurdly rational.”38 Socrates’ prescription of “permanent daylight—the daylight of reason” is not a formula for virtue or health or happiness, then, but it is a script for self-preservation. Nietzsche admires Socrates.39 Socrates lived among men “of fatigued instincts” who had “let themselves go” and who “still mouthed the ancient pompous words to which their lives no longer gave them any right.”40 Nietzsche says that in such an age irony, “that Socratic sarcastic assurance of the old physician and plebeian who cut ruthlessly into his own flesh, as he did into the flesh and heart of the ‘noble,’” may have been required for greatness of soul.41 Turning against the self in this way was, Nietzsche claims, “something so new, profound, unheard-of, puzzling, contradictory, and momentous on earth that the whole character of the world changed in an essential way.”42 The spectacle that began then is “too subtle, too wonderful, too paradoxical” to take place unobserved, and its end is not yet in sight. Thus, despite the horror of Socrates’ “revenge on life,” Nietzsche acknowledges that man now “arouses interest, tension, hope . . . as though something were being announced through him, were being prepared, as though man were not an end but just a path.”43 The ambivalence Nietzsche expresses about the “decline” chronicled in his history of metaphysics is helpful to me when I find it necessary to clarify my own attitude toward the arguments in the Supreme Court cases on capital punishment that I single out to discuss. I analyze these arguments

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in terms of the metaphysical claims that are implicitly or explicitly made so that death may be understood as a legitimate sentencing decision in a modern state.44 I argue that these claims indicate that legitimacy has been put into question; just as Socrates’ prescription indicates that the quality that distinguished authoritative statements as such in Athens may no longer be taken for granted, so the Supreme Court’s intervention in the practice of capital punishment in this country indicates that sentencing decisions in death penalty cases may no longer command the respect that once distinguished them from perverse or whimsical acts of sovereign power. However, in making this argument, I do not want to suggest that it would be desirable (or possible) to return to some original state of innocence or naïveté about the power exercised in the sentencing decision in capital cases. Rather, I want to say that the Court recognizes a need to intervene, and while the terms in which it intervenes set up some sort of ideal with which to sanction actual sentencing decisions, this “expedient” may be necessary for the preservation of the system that imposes it. I will also suggest that this expedient reveals the limits of the particular conception of judgment with which we make decisions in, for, and as a modern liberal state. Returning to Nietzsche’s history of metaphysics, it is important to observe again that each stage of that history sows the seeds of its own destruction. In the first stage, the real world is attainable to the wise man. If he is virtuous, he may know the real world; through philosophy, he may practice living there. The wise man has to deny the demands of his flesh but he does not need to leave behind his family and friends to contemplate the truth.45 If he is very good, he can behold it from this world, the apparent world. However, when others follow Socrates’ example and seek to affirm or discover for themselves the real world Socrates describes, they do not find it. On the contrary, when they engage in dialectics, as Socrates would have them do to ascertain the truth, they are led to cast doubt upon Socrates’ own conclusions. Asking questions and using reason to test answers and make valid claims, they arrive at the second stage of Nietzsche’s history of an error: 2. The real world, unattainable for the moment, but promised to the wise, the pious, the virtuous man (“to the sinner who repents”). (Progress of the idea: it grows more refined, more enticing, more incomprehensible—it becomes woman, it becomes Christian.)46

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Passing through the crucible of reason, Socrates’ idea of the true becomes more “refined.” At the same time, it becomes more opaque to reason. The real world still exists, but it is not present exactly as the old philosopher implied. Nor is the seeker’s personal virtue enough to assure success. Above all, one needs to have patience; to behold the truth one must have faith. At the second stage of Nietzsche’s history of an error, the two worlds have no connection with one another.47 Passage from one world to the other is no longer possible, so one has to wait to behold the truth.48 Reason is useless to the philosopher because the real world is not intelligible to men and women in the apparent world. In this world, the truth is not to be deduced; it may only be believed. It is a matter of trust. To think otherwise is blasphemous. Nietzsche claims that Christianity teaches men to feel “the supreme values of intellectuality as sinful, as misleading, as temptations.”49 Temptations divert one from the “right road,” so they must be refused. Nietzsche describes the repudiation he identifies with the second stage of the history of metaphysics as an expression of “a profound discontent with the actual.”50 At this stage everything to do with the actual world is denied; one hates nature, despises the body, and rejects the senses.51 As the pursuit of truth in this world is not only futile but also unholy, life in this world can no longer have any ultimate value. More precisely, in the apparent world one’s life can have meaning only to the extent that it reflects its true meaninglessness: “to live that there is no longer any meaning in living: that now becomes the ‘meaning’ of life.”52 Nietzsche interprets this ascription of meaninglessness to life as a signal that man is “a war,” a human being who has in his body “drives and value standards that fight each other and rarely permit each other any rest.”53 According to Nietzsche, the most fundamental desire of man who is a war is that the war should end so that he might finally enjoy “the happiness of resting, of not being disturbed, of satiety, of finally attained unity, as a ‘sabbath of sabbaths,’ to speak with the holy rhetorician Augustine who was himself such a human being.”54 At this stage of the history of metaphysics, the “sinner” believes this peace will be his in the real world. While no logic can prove it, nor reason be given to believe it, “everything firm” is promised to him in the next world.55 Christian respect for the concept of truthfulness is reflected in the insistence upon faith rather than proof. But as the Christian conscience is refined and, according to Nietzsche, “translated and sublimated in a scientific conscience,” Christian faith itself comes to seem “indecent” and

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“dishonest.”56 When philosophers “second” the Church, they suggest “that the ruling power of the will of God, expressed as punishment and reward according to the degree of obedience, is demonstrated in the destiny of a nation, of an individual.57 This suggestion implies that what is impossible to know directly in the actual world may be known indirectly. While phenomena that appear in the actual world are not true in themselves, they may then be understood to be signs or “occasion for metaphor.”58 If this is the case, the relative success of an individual in this world may be read as a reflection of that individual’s status in the real one. However, the severity of Christian morality, “intellectual cleanliness at any price,” forbids this kind of reading as it is a “lie in faith in God.”59 “Looking at nature as if it were proof of the goodness and governance of a god; interpreting history in honor of some divine reason, as a continual testimony of a moral world order and ultimate moral purposes,” are considered “mendacious, feminism, weakness, and cowardice.”60 Nietzsche observes, “that is all over now, that has man’s conscience against it.”61 Doubt about the validity of any knowledge obtained from the actual world, indeed “altogether everything that can be known causaliter,” leads one to the third stage of the history of metaphysics.62 Nietzsche identifies this stage with Kant: 3. The real world, unattainable, undemonstrable, cannot be promised, but even when merely thought of a consolation, a duty, an imperative. (Fundamentally the same old sun, but shining through mist and skepticism; the idea grown sublime, pale, northerly, Königsbergian.)63

According to Nietzsche, Kant discovers a “firmness” within, the voice of conscience which alone in this world can indicate to us (but not show us) the ground upon which we may base our actions and be sure to do the right thing.64 Faith in the real world no longer suffices to assure anyone of ultimate possession of the truth or the thing in itself; on the contrary, as we have seen, it leads to the terrifying question, “Has existence any meaning at all?”65 Kant’s philosophy offers an answer, suggesting as it does that the individual can seek and find what constitutes the preeminent good in his own consciousness.66 This good is a quality of his will when he wills his action from reverence for the law—that is to say, when he wills his action from a sense of duty induced by a will that is good through its willing alone, not because of its fitness for attaining some proposed end or the sat-

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isfaction of some inclination in this world.67 Of course, situated as he is in this world, the actual world, the individual may not be able to determine that he actually acts out of reverence for the law. Nevertheless, he may be consoled by the fact that he can know how to determine whether his action is compatible with this good. At the fourth stage of the history of metaphysics, such consolation falls into the background. “Scientific conscience” ultimately has little patience for what cannot be demonstrated. Hence: 4. The real world—unattainable? Unattained, at any rate. And if unattained also unknown. Consequently also no consolation, no redemption, no duty: how could we have a duty towards something unknown? (The grey of dawn. First yawnings of reason. Cockcrow of positivism.)68

At this stage man believes that what is explicable is only what can be seen and felt, and only the explicable is “real.”69 While this way of thinking represents the converse of the Platonic way of thinking, Nietzsche claims that “it follows instinctively the canon of truth of eternally popular sensualism.”70 In other words, it naturally succeeds Kant’s argument that every rational being is the seat of universal law—the unconditional feeling that “here everyone must judge as I do.”71 People continue to want “by all means that something should be firm.”72 Now, however, the only interpretation of the world that will satisfy this demand for certainty is an interpretation “that permits counting, calculating, weighing, seeing, and touching, and nothing more.”73 When only natural phenomena, verified by the empirical sciences, can be known, how things are valued is a matter of utility. At this stage of the history of metaphysics, then, “good” refers to nothing other than a balance of sensations. When pleasure is greater than pain, the thing is good. When pain is greater than pleasure, the thing is bad. The least pain is “a very modest kind of eternal happiness in comparison with the promises of religion,” Nietzsche notes, but nevertheless, with this “worldly solution” one is still able to continue referring to a “real” for a sense of value.74 One may not know the real world, but experience in this world, the apparent world, seems to have an intrinsically moral character. Thus, one continues believing in good and evil. Indeed, one “experiences the triumph of the good and the annihilation of evil as a task.”75 In this context, Nietzsche refers to John Stuart Mill. Mill’s greatest happiness principle not only

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implies that “happiness” can be measured, but that one has an obligation to guide one’s actions by this measure. Thus, utility as a value does not require one to relinquish “the pre-eminence of what is un-egoistic, selfdenial, negation of the will.”76 On the contrary, it allows one to hold on to the “beyond” from which one might derive some old-fashioned metaphysical comfort.77 At the fifth stage, this comfort and whatever else might have been derived from the “beyond” is found to be quite unnecessary: 5. The “real world”—an idea no longer of any use, not even a duty any longer— an idea grown useless, superfluous, consequently a refuted idea: let us abolish it! (Broad daylight; breakfast; return of cheerfulness and bons sens ; Plato blushes for shame; all free spirits run riot.)78

Not right away but inevitably, utilitarians discern that the “beyond” is really good for nothing. What is good for nothing is inessential and may just as well not exist. Thus, at the fifth stage the real world may be abolished. As lighthearted as doing away with the real world may sound, it is not simply a matter of turning our attention to tangible things in this world. Nietzsche suggests that positivism undermines not only one’s justification for having faith in the beyond but one’s ability to have faith at all. When scientific criteria of validity take precedence over all other criteria, one loses not only the will but also the way to believe. The conditions under which one would seek to prove the existence of God, for example, would be conditions under which religious conviction would be an unfamiliar or unknown mode of confidence or certainty. Success in proving the existence of God would only reinforce the strangeness, and irrelevance, of this mode and confuse those who tried to believe that way. In sum, as Nietzsche observes, “If this God of the Christians were proved to us to exist, we should know even less how to believe in him.”79 In an age of strong beliefs one does not abandon a belief when one is compelled to exhibit a different belief.80 By contrast, at the fifth stage convictions are held lightly, so that when one is compelled to entertain a different belief, one either abandons the belief one already holds, or one holds a large number of beliefs at once. This “self-tolerance” may be “honest,” but it also implies a kind of laziness, indifference, or stupefaction. According to Nietzsche, this attitude of “carelessness” indicates the demise of the

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real world. Because one is incapable of having strong beliefs, one can hold several conflicting beliefs at once and not violate or compromise any of them.81 One who cheerfully holds several conflicting beliefs but who is neither insincere nor deceitful is not even a hypocrite.82 Because one no longer dares to posit a will, a purpose, or a meaning, no ultimate meaning is posited except the appearance of pleasure or displeasure.83 Thus, “all free spirits run riot.” Significantly, the “claim to independence, to free development, to laisser aller” is not, in Nietzsche’s eyes, a sign of vitality but rather a symptom of decadence. At this stage, to rely on one’s instincts is a “physiological self-contradiction,”84 the expression of which is nihilism.85 Having discovered of what materials one built the “true world,” one finds that all one has left is the repudiated world and the values that pass judgment. One adds this supreme disappointment to the reasons why the repudiated world deserves to be repudiated,86 and concludes, “Nothing is worth anything—life is not worth anything.”87 At such a point, “Nothing would be more useful and more to be encouraged than a thoroughgoing practical nihilism.”88 What this means, exactly, is difficult to communicate because Christianity impedes a vital kind of self-destruction by continuing to teach and practice a “feeble, vegetable existence in expectation of a false afterlife.”89 To prefer a certain nothing to an uncertain something is a sign of a despairing mortally weary soul, Nietzsche says.90 Christianity cultivates and protects such a soul and thus devaluates the value of purifying nihilistic movement. Nevertheless, some are still eager for life. These stronger and livelier thinkers do not fear to side against appearance, and do so with arrogance rather than resentment. They speak of “perspective” and “rank the credibility of their own bodies about as low as the credibility of the visual evidence that ‘the earth stands still.’ ” 91 As they let their securest possessions go (for, as Nietzsche says, what does one believe in more firmly than in one’s own body?), their good humor also marks the sixth and final stage of the history of metaphysics: 6. We have abolished the real world: what world is left? the apparent world perhaps? . . . But no! with the real world we have also abolished the apparent world! (Mid-day; moment of the shortest shadow; end of the longest error; zenith of mankind; INCIPIT ZARATHUSTRA)92

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The “skeptical anti-realists and knowledge-microscopists” of this stage are not concerned with “modern” reality. Indeed, Nietzsche ventures, “who knows if they are not trying at bottom to win back something that was formerly an even securer possession, something of the ancient domain of the faith of former times, perhaps the ‘immortal soul,’ perhaps ‘the old God,’ in short, ideas by which one could live better, that is to say, more vigorously and cheerfully, than by ‘modern ideas’?”93 According to Nietzsche, the ideas by which one could live better may be “alien and embarrassing to the present taste,” but those who think them do not care. Nietzsche says this type of man “experiences itself as determining values; it does not need approval.”94 It is beyond good and evil. But we must be wary of evaluating this type as “progress,” for “however courageous the gestures of such a virtue may look,” to do so is to treat the future—what will be (better)—as a means of escape from the present and the past. Nietzsche’s history of an error is a history of this desire to rise above and get away, rather than return to the human condition.95 Thus, at the end, where we find ourselves is, more or less, up to us.

II. The Error’s Beginning The modern era of capital punishment jurisprudence is inaugurated when the Supreme Court, like Socrates in Nietzsche’s history of metaphysics, calls attention to the irrationality of received practice. To stave off the arbitrariness that threatens to dissolve the community because of this irrationality, in Furman v. Georgia the Court calls for a stable principle to assure the community of the truth of the claims its members make of and for each other. However, also like Socrates, the Court’s courageous gesture turns out to mark a moment when a certain conception of truth emerges, a conception that ultimately undermines what it would save. Before turning to the cases that inaugurate the modern era of capital punishment jurisprudence in the United States, I should note that my reading of these cases focuses on the language of the justices’ opinions, attending to the figures and grammatical constructions of these opinions rather than the legal philosophies, political agendas, or particular personalities that may (or may not) animate the individual justices’ choice of words and final conclusions. Reading this way, I seek explanations for change in

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the Court’s death penalty jurisprudence not on the basis of what is assumed to already be there—in Michel Foucault’s words, “the existence of immobile forms that precede the external world of accident and succession”—but rather on the basis of what emerges in the words and phrases the justices use to characterize and evaluate the salient details of the cases before them.96 Thus, instead of looking to something like a personal intention or a historical movement to abolish capital punishment for an explanation of the Court’s decision in Furman, I look to what surprises, what emerges unexpectedly, circumstantially, or contingently, in the context of the Court’s death penalty jurisprudence for the meaning of the Court’s actions. Throughout the book, I read this way not only in support of my argument that the Supreme Court is searching for grounds for validating death sentencing decisions but also in support of my claim that the character of judgment itself is illuminated by this search. The modern era of capital punishment in the United States is usually said to begin with the Court’s 1972 decision in Furman v. Georgia. However, inspired by Nietzsche, I begin my analysis of the Supreme Court’s death penalty jurisprudence with a discussion of an earlier (unsuccessful) challenge to the capital punishment system in the United States. As Nietzsche’s comments about Socrates prepare us to appreciate, the fact of this case indicates that certain questions are already in the air. We might even say that the capital punishment system has “let itself go” so that the pompous words of its defenders no longer automatically give the people the right to sentence individuals to death in the United States. In other words, a practice that was once presumed unassailable on constitutional grounds is invulnerable no more. The case under discussion is McGautha v. California (1971). Dennis McGautha was convicted of murder in the first degree and sentenced to death by a jury that, in accordance with California law, had absolute discretion in the decision of whether he should live or die. The Supreme Court granted certiorari in the case to consider the question of whether McGautha’s constitutional rights were infringed by permitting the jury to impose the death penalty without any governing standards. The Court finds that McGautha’s rights were not infringed and affirms his death sentence. According to McGautha, “to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless and therefore violates the basic command of the Fourteenth Amendment

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that no State shall deprive a person of his life without due process of law.”97 In effect, McGautha claims that the jury’s sentencing decision has no legal character. Consequently, when individuals are sentenced to death their lives may be taken from them without any attention to the rules and principles established to enforce and protect basic rights in criminal proceedings. The Court, however, does not find this a compelling argument. Looking at the historical record, the Court claims that efforts to determine which elements of a murder lead a jury to condemn a murderer to death have been “uniformly unsuccessful.”98 Reflecting on this history, the Court concludes: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”99 According to the Court, to regulate or guide the sentencing authority’s discretion in capital cases is impossible. What is more, to try to regulate or guide the sentencing authority’s discretion in capital cases would be self-defeating. Not only would it be out of the question for anybody to “catalog the appropriate factors,” but to attempt to do so “could inhibit rather than expand the scope of consideration.”100 In other words, to articulate standards to protect the lives of individuals convicted of capital crimes would not only be hopeless, it would also be self-contradictory, for any standards the states try to establish might lead juries to believe that they cannot show mercy in their sentencing decisions when they can. The Court cites approvingly the Report of the Royal Commission on Capital Punishment, which finds that “No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished.”101 In sum, in McGautha, the Court argues that no general rules apply in capital cases and therefore no general guidelines can be suggested to help the jury determine what a particular defendant deserves as punishment for the horrible crime he or she has committed. The Court’s holding and rationale in this case shows that the Supreme Court was once willing and able to recognize that the decision to put someone to death is a decision that cannot be evaluated in any terms external to those of the decision itself. The Court affirms that each sentencing decision

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in a death penalty case is a judgment whose justice does not lie in its accordance with any truth beyond the jury’s statement of what the defendant deserves.102 Like the Sophists when they postulate that it is “a swindle to talk of ‘truth’ in this field,” the Court suggests that to give reasons or posit proofs of the appropriateness of a death sentence is to perpetuate a horrible hoax.103 To turn a feeling into a justification or an argument for a sentence is not to strengthen the conviction of its justness but is rather to pervert its integrity. In effect, “moral judgments are torn from their conditionality, in which they have grown and alone possess any meaning.”104 Under the “pretense of sublimation,” Nietzsche says moral judgments are “denaturalized.”105 In McGautha v. California, the Court resists the call to remove the sentencing decision from the settings where they are customarily made in order to guarantee that they are legally produced. I read the Supreme Court’s decision in Furman v. Georgia one year later to manifest a sudden existential suspicion about the “beautiful feeling” expressed in sentencing decisions. In the same way that Socrates challenges received wisdom at the beginning of Nietzsche’s history of metaphysics, the Court challenges longstanding practice and the truth of appearances at the beginning of the modern era of American capital punishment jurisprudence. In Furman, the Court holds that the imposition and carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court finds the death penalty to be cruel and unusual punishment because sentencing authorities impose it infrequently and unsystematically. In brief, the Court says that judges and juries in capital cases appear to act “arbitrarily.”106 The character of the arbitrariness that suddenly disconcerts the Court is captured in an analogy drawn by Justice Potter Stewart. In his oftquoted opinion, Stewart says of the death sentences before the Court, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.”107 In his opinion, Stewart compares the experience of being sentenced to death with the experience of suffering a freak accident, and thus he expresses the basis of the Court’s ruling in Furman: the sentence of death is

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cruel and unusual because it is imposed rarely and for no consistent set of reasons. Capital punishment violates the Constitution because the defendant in a capital case has no cause to expect the death penalty and suffers the sentence without knowing why. The defendant in a capital case is hardly at the mercy of unknown juridical elements, of course. In order to face the possibility of execution he or she has to be accused and found guilty of committing a capital crime. Nevertheless, according to the majority of the Court in Furman, the death penalty is cruel and unusual punishment because those who face the possibility of execution have no reason to believe that they will be the ones who are going to be sentenced to death. This is because no reason is expressed in the distribution of death sentences. No reason is expressed because no one decides upon these penalties in a manner that the Supreme Court can recognize when it looks for evidence of rationality. In this regard, the Court faces a situation similar to the one that Socrates encounters when he seeks to disprove the oracle who said there was no one wiser than him; after examining people, Socrates finds that there is no one.108 The passage from Stewart’s opinion cited above makes the parallel clear. In Stewart’s opinion the subject who condemns the defendant to death is absent. Death sentences simply “are”; they are imposed “under” legal systems, not by them. The reader is confronted with “the infliction of a sentence of death” but not the individual or institution responsible for the infliction. Stewart’s language thus implies that no agency provides a rationale for the imposition of the death penalty. Sentences appear “so wantonly and so freakishly imposed” because they do not correspond to any rational intentions or ends. There are other ways to explain the absence of an agent in the passage from Stewart’s opinion, of course. Referring to Robert Johnson’s work, we may interpret this absence as an example of society’s discomfort with the death penalty.109 Johnson claims that as we increase our awareness of and empathy for the humanity of others (as we inevitably do with the process of “civilization”), we slowly but inexorably distance ourselves from the scene of execution in order to ease the psychic distress that causing harm to people causes us.110 An alternative explanation derived from the work of Foucault would, I think, take issue with Johnson’s assumption about the process of civilization and emphasize instead how the “system of protection” set up between the sovereign and the punishment the sovereign imposes shields the sovereign’s power rather than the sovereign’s psyche

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from popular critique.111 According to Foucault, what historically leads to the disappearance of public executions is a desire to keep distinct the violence exercised by the sovereign and the violence resorted to by the criminal, so that the “confused horror” that once spread from the public gallows and guillotine no longer can threaten to turn legal violence into “shame.”112 By removing from his opinion the subject who imposes the penalty, then, Stewart may criticize legal decisions without risk of inadvertently illegitimating the law. Finally, as suggested by Robert Cover’s work, Stewart’s passive grammatical constructions may be interpreted as fair representations of a system that calls on multiple agents to bring about the imposition of legislated penalties levied by courts.113 It is impossible to attribute death sentences to any single agent for a good reason, then: no single agent is responsible for a death sentence. The system is set up this way not to protect people from acts of violence they would otherwise be horrified to commit, but to make sure that responsibility is shared for those acts of violence that must be committed. Curiously, these different possible explanations of Stewart’s opinion share one assumption: that there is a sovereign agent (or a number of agents) to be found. What Stewart’s opinion suggests, however, is that no such agent now exists. This interpretation may seem strained as death sentences are being imposed by state-authorized actors, that is to say, by judges and juries. Obviously, the point of Stewart’s critique of the death penalty system is not that there are no literal decision-making agents, then. Rather, as I read this critique, it is that the Court may no longer assume that these agents do justice when they decide who deserves life and who deserves death because these agents give no reasons for their decisions. In sum, how the Court conceives of justice in relation to capital punishment is no longer what it was in McGautha. As we have seen, in that case the Court is satisfied that juries decide what is just. In Furman v. Georgia, the sentences before the Court are also decided by juries but their sentencing decisions are scrutinized for evidence of a higher rationality. When this rationality does not become apparent, the majority of the justices on the Court decide that the sentences are “arbitrary.” Like Socrates in Nietzsche’s history of metaphysics, then, Furman is a symptom of decline. The Court’s search for a reason for the decisions made in the capital punishment system is an expression of a waning faith in established practice; at the same time, by seeking this reason the Court indicates how the

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system may be saved from the very dissolution that its ruling in Furman realizes. In this way, the Court sends the jurisprudence of capital punishment in the United States down a metaphysical path. I do not try to determine here why the Court suddenly needs to find a reason to explain the imposition of particular death sentences by the criminal justice system in the United States.114 I note only that, when it concludes that the absence of such a reason renders death sentences in capital cases arbitrary, the Supreme Court commits itself to the view that judgment is validated by its realization of a metaphysical truth. For rather than accepting or celebrating the specific, contingent, provisional decision of a single jury or judge, the Court requires that all sentencing decisions correspond to a single logic, an ideal rational principle or reality. For, again like Socrates, the Court does not seek to destroy the system but to uncover the metaphysical grounds that may preserve it. This is clear from the fact that the justices in the majority in Furman refuse to rule out capital punishment completely. As Chief Justice Warren E. Burger remarks in his dissenting opinion, “legislative bodies have been given the opportunity, and indeed unavoidable responsibility, to make a thorough re-evaluation of the entire subject of capital punishment.”115 Burger recognizes that Furman only requires that the statutes that guide the sentencing process in death penalty cases from now on must direct judges and jurors to attend to specific matters identified in advance, so that the sentencing decisions they make may be recognized to be just. In other words, capital punishment may be imposed again as soon as the truth to which just decisions correspond is made more evident, so that judges and jurors may use it as a reference in their sentencing decisions. Such an understanding of what it is to judge changes how sentencing decisions in capital cases are legitimated, criticized, and even denied.

III. Dead Certainty Becoming a Myth The next five chapters focus on different Supreme Court decisions in capital cases that mark how confidence in the truth embraced by the Supreme Court in Furman gradually fades away so that grounds for sentencing decisions that once seemed authoritative come to appear “arbi-

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trary,” and the Court is challenged to come up with new ways of authorizing final (fatal) sentencing decisions. Chapter 2, “The Promise of Reliability and the Twin Objectives of the Capital Punishment System,” examines the Supreme Court’s decision in Gregg v. Georgia (1976) that restores the constitutionality of capital punishment in the United States. In finding that revised capital punishment statutes in Georgia (and elsewhere) pass constitutional muster, the Supreme Court restores the legitimacy of the practice of capital punishment on the grounds that sentencing decisions will be “reliable” when they are strictly regulated. The chapter argues that by endorsing a procedural solution to the problem that sentencing authorities cannot be relied upon to correctly interpret the information with which they are presented at trial, the Court does not abandon the assumption that sentencing decisions are ultimately validated by a certain truth. Rather, the Court accepts that such truth is not easily apprehended by people in this world and trusts to a system of regulation dubbed “super due process for death” to help sentencing authorities discover it.116 Like the real world at the second stage of Nietzsche’s history of an error, reliability may be unattainable for the moment but it is promised to those who have faith. However, that promise is not easy to realize. To ensure that sentencing decisions in capital cases are as reliable as possible, the Supreme Court demands lower courts provide both equal treatment of defendants being tried for capital offenses and individual consideration for the circumstances of their lives and their crimes. Chapter 2 examines these two objectives, noting that they reflect the two poles between which justice has been defined since Aristotle. It also examines how, to the Court’s ultimate frustration, these two poles cannot rationally be reconciled with one another. Chapter 3, “The Consolation of Common Sense in the Regulation of Capital Punishment,” takes up evidence that the strict regulation of sentencing procedures does not solve the problem of judgment. Focusing on the Court’s decision in Zant v. Stephens (1982), the chapter shows how the Court accepts informal methods of guiding the discretion of sentencing authorities in deciding on sentences.117 The chapter argues that in so doing the Court acknowledges the difficulty of discerning the truth to which it has required judgments to correspond. Informal methods of guiding discretion imply, but do not presume to identify in advance, the truth upon

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which a valid sentencing decision will be based. The acceptability of these methods to the Supreme Court as a means of regulating sentencing decisions in capital cases indicates that the Court is willing to settle for grounds of certainty that may be inferred even if they can never be demonstrated. In this regard, the Court finds a solution to the problem of judgment that is consonant with the third stage of Nietzsche’s history of metaphysics. This chapter focuses on one of the informal methods used to guide the sentencing authority’s discretion: metaphor. The presence of metaphorical language in sentencing statutes and the effect of this kind of language on sentencing outcomes has been noted and discussed by courts across the country as well as by scholars of capital punishment jurisprudence. Chapter 3 takes issue with these familiar arguments and points out that they fail to recognize how metaphor insists upon a human capacity of “common sense” to identify (or conflate) different words or phrases. Drawing on Jürgen Habermas’s development of Kantian reason to clarify the context in which reason may (or must) be assumed to be at work, the chapter claims metaphors assure the Court that sentencing decisions are not as arbitrary as they appear, so that the Court can continue to uphold the constitutionality of certain sentencing schemes when they are challenged for failing to adequately guide the discretion of sentencing authorities in capital cases. Chapter 4, “The Cockcrow of Positivism: ‘Normal’ Culpability in Capital Punishment Jurisprudence,” addresses the problems that arise for the jurisprudence of capital punishment when sentencing decisions nevertheless continue to be criticized as capricious and despotic. The chapter focuses on Tison v. Arizona (1987), a U.S. Supreme Court case in which the Court rules that a person may be sentenced to death for a crime he or she neither committed nor intended to commit.118 Analyzing the Court’s opinion in this case, this chapter shows that the capital punishment system’s trust in reason is replaced with a faith in norms and the power of norms to express the truth to which judgments must refer. This shift locates the metaphysics of capital punishment jurisprudence at the fourth stage of Nietzsche’s history. In keeping with that stage, in a close reading of Tison, Chapter 4 shows how the Court turns to phenomena of this world, the sensuous, apparent world, to ground final judgments. Drawing on the work of H. L. A. Hart and J. L. Austin, the chapter shows how Tison encourages

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courts to look to social conventions rather than the accused’s inscrutable intentions to determine whether an act may be legally identified as a crime punishable by death. With this decision, then, courts can interpret questions such as “Should the defendant have known better?” not as questions about what defendants ought to know but as questions about what defendants can know if they simply observe how the majority of people behave. The chapter argues that by exploiting the polysemy of “normal” the Supreme Court does away with the problematic subject of capital punishment cases (the accused) and permits sentencing authorities to consider only phenomena they can see (the victim), when they decide upon what the accused deserves for his or her (in)actions. Chapter 5, “The Impact of Payne: The Return of Sense to Capital Punishment Jurisprudence,” focuses on the Court’s decision in Payne v. Tennessee (1990) allowing victim impact statements to be considered during the sentencing phase of a capital trial.119 This controversial decision marks the Court’s recognition that judgments based on some abstraction are less reliable than judgments corresponding to some sensation, in particular a sensation that is universally known but always only individually experienced. The chapter argues that in Payne the Court embraces the testimony of a victim’s family and friends in capital trials as an expression of this sensation, for the victim’s survivors testify to a visceral experience that is particular but also commonplace in so far as everyone has endured some form of hardship. Theodore Adorno’s remarks about the “objective” status of suffering clarify how these feelings can be seen to provide the truth that the Court seeks in order to authorize death penalty decisions in a sensuous world. The chapter also points out, following the work of Hannah Arendt and Elaine Scarry, that these feelings, when expressed by a victim’s survivors, are particularly authoritative in the context of a death penalty trial. They cannot be refuted; the pain to which survivors testify is not necessarily observable, and it is difficult for defense attorneys to challenge survivors’ statements about their suffering. What is more, survivors speak from a position that is uniquely proximate to death, and in the apparent world death is an absolute. Finally, the chapter claims, the testimony of survivors saves society from a fear of the purposelessness of suffering. By admitting victim impact evidence during the sentencing phase of a capital trial, the Supreme Court assures society that despite the fact that this world is plagued by random

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acts of brutal violence, even in this world pain and suffering are not for nothing. Indeed, it is to the extent that the experience of suffering is recognized to be meaningful that the Court’s decision in Payne v. Tennessee exemplifies the return of optimism and “good sense,” which Nietzsche identifies with the fifth stage of the history of metaphysics. The real world has been almost completely eclipsed by the apparent world at this stage, but it is the use of DNA evidence in capital trials (and the development of technologies which permit this evidence to be produced and tested) that finally renders obsolete references to the truth of a real world for validation of judgments. Thus, the use of DNA in these trials epitomizes the sixth and final stage in Nietzsche’s history of metaphysics. Reflecting on recent abolitionist rhetoric as well as Governor George Ryan’s decision to empty Illinois’s death row, Chapter 6, “The End of Error: DNA Technology and the Decision Not to Decide in Capital Cases,” shows how DNA appears to solve the problem of arbitrariness in sentencing decisions in death penalty cases. Specifically, DNA testing “objectifies” the grounds upon which the sentencing decision is determined. Of course, DNA is not available in all instances. Thus, those whose cases cannot be disposed by DNA evidence remain alive in a zone that seems to resist rationalization. In this zone, sovereign power, as theorized by Carl Schmitt, alone would seem to dictate the inmate’s fate. However, with the introduction of DNA testing in other death penalty cases, those executives and clemency boards who ultimately have the power to condemn or grant mercy to the men and women remaining on death row now refuse to use their power to decide cases in which DNA evidence may not be brought to bear. Austin Sarat has christened this development the “new abolitionism” and celebrates it for protecting the promise of liberal democracy from the threat of an arbitrary capital punishment system. By contrast, Chapter 6 argues that the use of DNA tests in court threatens to establish an expectation or demand that the grounds upon which a judgment may be made are extrinsic to the way humans are in the world—constantly changing, becoming, growing, and passing away. While this denigration of the sensuous world may seem to repeat a familiar “error,” this time no real world is posited as its superior. Instead, the truth that authorizes judgment must take the form of phenomena that appear in this world in a particular mode. The chapter draws on Martin Heidegger’s

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work on technology to elaborate on this mode, which he calls “challenging revealing.” Chapter 6 concludes that the appeal of DNA evidence in capital trials is that it appears to allow for total rationalization of death penalty decisions by providing the grounds for a decision with certainty. Chapter 7, “The Experience of Judgment,” the final chapter, undertakes to “revalue” the act of judgment. When the Court sees judgment as a problem, as it does in Furman, it is motivated by hatred and fear of death to weigh the value of life. This chapter suggests that this motivation is reflected in criticism of capital punishment sentencing decisions on the grounds that these decisions are arbitrary, that is to say, corrupted by the vagaries of existence. When judgment is no longer predicated on a two-world philosophy of the fundamental nature of reality, the chapter suggests we may be better able to experience and appreciate the multifarious attributes of the actor that contribute to the validity of the claims we make of, for, and as members of a modern liberal society. What is more, we may also be better able to experience and appreciate the irrepressible character of the act. Borrowing from the work of Hannah Arendt, Carl Schmitt, and Walter Benjamin, the chapter describes judgment as an act of creation that no eternal, absolute, immutable ideal authorizes or retrospectively validates. Rather than being a quality ascribed to judgment or inherent in it, then, validity is presented as an effect of judgment. Emerging from an assemblage of personal dispositions, disciplinary practices, social situations, physical environments, historical circumstances, and plain luck, this effect transforms the world. The book concludes by reviewing the Supreme Court’s decision in Furman v. Georgia in light of this revaluation of the act of judgment to show how this decision, like every act of judgment, is the occasion of something new, something inestimable, being brought into being.

IV. The End of the Beginning: “False Judgment” This book does not argue either for or against the practice of capital punishment, and for some this may seem like a moral failing. However, what the book does do is examine the jurisprudence of the death penalty in the United States for the purpose of contributing to a philosophical discussion about judgment and the modern human condition. Focusing on an extraordinary but actual instance of life and death judgment in contemporary

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society, it analyzes the arguments that authorize, legitimate, challenge, and refine the imposition of capital sentences. It draws attention to the underlying assumptions of the arguments that prevail in the U.S. Supreme Court and in critical commentary, in order to show how the difficulty of judgment has been framed as a problem in need of a metaphysical solution, and it examines the evolution of the jurisprudence of capital punishment in the United States over the past thirty years as an attempt to provide such a solution. But while the book engages the work of important classic, modern, and contemporary legal and political theorists, it does so always with the intention of shedding light on the challenge of real life and death judgment and with respect for the fact that we judge most of the time without the benefit (or burden) of formal instruction, legal right, political authority, moral legitimacy, or real knowledge. In the context of American capital punishment jurisprudence, this fact has practical significance. In criminal cases, the jury has the de facto power to acquit defendants regardless of the strength of the evidence against them.120 The exercise of this power is known as “jury nullification,” and its legal status is still often debated.121 Nevertheless, in famous cases of jury nullification, it is perhaps easy to appreciate Nietzsche’s observation that the “falseness” of a judgment is, for us, not necessarily an objection to a judgment.122 However, Nietzsche warns us that to recognize “untruth as a condition of life” is hard, for it means resisting accustomed value feelings. In other words, while we may appreciate the fact that judgment may not pertain to matters about which we have certainty, we would be deceiving ourselves if we said it would be easy to distance ourselves from the familiar idea that what makes one judgment superior to another is its proximity to a “ground truth.” Yet, this book concludes, when we examine our experience of the act of judgment, we find that familiar ideas do not tell the whole story.

2 The Promise of Reliability and the Twin Objectives of the Capital Punishment System 2. The real world, unattainable for the moment, but promised to the wise, the pious, the virtuous man (“to the sinner who repents”). (Progress of the idea: it grows more refined, more enticing, more incomprehensible—it becomes a woman, it becomes Christian . . .) —Friedrich Nietzsche, Twilight of the Idols

In Furman v. Georgia (1972), the Supreme Court of the United States decides that the death penalty is unconstitutional because its imposition violates the Eighth Amendment’s prohibition against cruel and unusual punishment.1 In so doing, the Court indicates that sentencing decisions in capital cases may and should be evaluated in standardized terms, terms inimical to the sense of justice previously realized and represented by these judgments. Thus, the Court leads capital punishment jurisprudence down the first steps of a long metaphysical path; predictably, state legislatures throughout the United States respond to the Court’s finding in Furman v. Georgia by revising their criminal justice statutes and rationalizing procedures in capital cases. Changes legislated after Furman signal more than the introduction of new procedural safeguards for defendants in capital cases, however. In this chapter, I examine the Supreme Court’s ruling in Gregg v. Georgia (1976) and several companion cases restoring the constitutionality of capital

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punishment in the United States.2 In Gregg, the Court endorses a procedural solution to the problem that sentencing authorities cannot be relied upon to arrive at “rational” sentencing decisions. However, in my reading of the Court’s death penalty jurisprudence after Furman, the Court does not necessarily abandon the assumption that sentencing decisions in capital cases are ultimately validated by an external, eternal truth. The Court’s assumption of such validation is apparent in its insistence on the “reliability” of a post-Furman capital punishment system.3 To achieve this “reliability” and to meet with constitutional approval, the Supreme Court explicitly requires two things of capital sentencing schemes. First, they must provide for equal treatment of all defendants being tried for capital offenses. Second, they must provide for individual consideration of the circumstances of the defendants’ lives and crimes. In this chapter, I argue that the Court insists that both principles be observed to ensure that the system is not only consistent but also “accurate.” Thus, to the extent that the sentencing schemes endorsed by the Supreme Court in Gregg and its companion cases are rendered constitutional by the reliability they promise, the solution to the problem of arbitrariness that satisfies the Supreme Court has a metaphysical character. The metaphysical character of this solution is due to its assumption of a reality that precedes the process by which a sentencing decision is made. This truth is not immediately grasped, but ideally, if one is dutiful and follows the procedures established to focus one’s attention and reason correctly, it can be apprehended. A sentencing decision may then reflect the real blameworthiness of the defendant. Such a view of sentences in capital cases assumes a particular relation between this world and the “real world,” a view that is represented at the second stage of Nietzsche’s history of metaphysics. There is a palpable tension between the two principles the Court requires all capital sentencing schemes after Furman to embrace, however. This tension is not surprising; since Aristotle, the two principles of equality and difference have defined the poles between which the practice of judgment has been stretched to achieve justice.4 Surprising or not, efforts to address this tension are illuminating. To show how judgment may be conceived by the Court when it embraces the principles of equal treatment and individual consideration as the means by which the imposition of death sentences in the U. S. criminal justice system may be rendered legitimate, I discuss Justice Antonin Scalia’s attempt to resolve what he takes to

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be an insupportable tension between them. In his rejection of the “twin principles,” he explains what he takes that conception of judgment to be and why it is untenable. The first part of the chapter reviews the Supreme Court decisions in 1976 restoring the practice of capital punishment in the United States. It focuses in particular on the state statutes sanctioned by the Court that refine sentencing decisions and promise “reliability” in the determination that death is the appropriate punishment in a specific case. The second part of the chapter elaborates on the metaphysical character of this solution to the problem of arbitrariness identified by the Court in Furman v. Georgia, drawing on the second stage of Nietzsche’s history of metaphysics to do so. The final part of the chapter returns to the specifics of the state statutes sanctioned by the Court and the “twin objectives” of the capital punishment system that emerges to consider how the decision to sentence a person to death is conceived by the Supreme Court. The discussion of judgment in this part of the chapter illustrates the challenge of rationalizing death penalty decisions and of legitimating absolute penalties in a modern society.

I. The Need for Reliability After the Supreme Court ruled in Furman v. Georgia that capital punishment was unconstitutional because it was imposed arbitrarily, it was not certain that the death penalty could ever again be imposed in the United States. However, in 1976, after reviewing different states’ revised death penalty statutes, the Court determined that the death penalty could be imposed without violating the Constitution. According to the Court, several states’ statutes sufficiently rationalized the sentencing process so that the death sentences imposed would no longer be arbitrary.5 Two features are common to these statutes. First, capital trials are divided into two phases, the guilt phase and the sentencing or penalty phase.6 Second, within the sentencing phase, decisions are construed in one form or another as a process of “weighing” aggravating and mitigating circumstances. Circumstances that “aggravate” the severity of the crime lend weight to the argument for death; circumstances that “mitigate” the defendant’s responsibility for the crime shift the scales to the side of mercy.

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In Gregg v. Georgia, the rationale of the new capital punishment system is discussed in detail. Writing for the Court, Justice Potter Stewart explains that if the sentencing authority—in Georgia, a jury—is to impose a “rational sentence” it needs as much accurate information about the defendant and his crime as possible.7 More information can be presented in a bifurcated trial than in a unitary proceeding. In a unitary proceeding, background information about the defendant may be excluded because it does not appear relevant to the question of guilt or because it appears prejudicial in the determination of guilt. For example, the fact that the defendant has had mental and emotional problems may have no bearing on the question of her guilt in a particular murder. However, should the defendant’s personal history be presented in court, it may easily be construed to support the prosecutor’s general argument that the defendant has not been a law-abiding citizen. In a bifurcated trial, during the penalty phase the defendant’s past mental and emotional problems can be discussed without prejudicing the jury on the question of guilt. What is more, as the question of guilt has already been decided at the penalty phase, the defendant herself may introduce the record of her troubled childhood as mitigating her responsibility for the crime without fear of incriminating herself. Yet complete information does not guarantee that the sentencing authority will impose a rational sentence that corresponds to the true blameworthiness of the convicted criminal. In Gregg, Stewart is particularly concerned that jurors will have little idea how to use evidence properly, as they have little or no experience in sentencing and are “unlikely to be skilled in dealing with information.”8 Consequently, Stewart embraces the second feature of Georgia’s capital sentencing scheme: the provision of sentencing guidelines. During the penalty phase of the trial, the jury is instructed to “weigh” those circumstances that favor the argument for death against those circumstances that lend weight to the argument for mercy. Only after weighing these circumstances may the jury recommend sentence. If mitigating circumstances outweigh aggravating circumstances, the jury may recommend a sentence less than death. However, if aggravating circumstances appear “heavier” than mitigating ones, the jury may recommend a sentence of death only after it has also found beyond a reasonable doubt at least one of ten statutory aggravating circumstances and specified to the trial court which one(s) it has found to justify capital punishment.9

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Thus, Georgia’s revised capital punishment statutes, as well as those of Florida and Texas, address Furman’s concerns about the arbitrariness of sentencing decisions in capital cases with the implementation of two procedures. The first, bifurcating trials, enables the sentencing authority to consider more information about the convicted defendant and her crime; the second, guiding sentencing discretion, directs the process by which the sentencing authority may draw conclusions from this additional information to ensure that these conclusions are appropriate. The problem of judgment identified by the Supreme Court in Furman—the absence of a coherent rationale or a consistent standard with which to evaluate the justness of a sentencing decision in a particular capital case—is solved by providing access to more information and formalizing the process by which that information is used to reach a sentencing decision. The assumption of such a solution is that, while the sentencing authority may not immediately recognize in a particular case what sentence is deserved, with controlled access to the facts and instruction about how to reason with these facts we can have faith that the system by which death is imposed on some is no longer irrational or capricious. We can have faith because access to (more) complete information properly understood affords the sentencing authority the opportunity to identify the defendant’s true degree of blameworthiness. As death sentences under the new system may no longer reflect willful conclusions drawn from idiosyncratic responses to random kinds of information about the defendant, sentences in capital cases are more likely to be based on what is true rather than on what the sentencing authority more or less arbitrarily takes to be true. The real truth, as it were, is the best possible standard by which the justness of a sentence in any particular capital case might be evaluated. It can also provide the best possible rationale for the distribution of death sentences. This assumption is evident in the Court’s holding that North Carolina fails to sufficiently rationalize its death penalty sentencing scheme. Like other states after the Court’s ruling in Furman v. Georgia, North Carolina revised its death penalty statute. Unlike most other states, however, North Carolina decided to make capital punishment a mandatory penalty when a defendant was found guilty of committing first-degree murder.10 Under such a system, it was assumed that the justness of the death sentences imposed would be assured by the consistency of the process. As no

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jury would have the opportunity to impose death sentences according to its own lights, all convicted murderers would be treated the same. However, in Woodson v. North Carolina, the Court finds North Carolina’s revised statute unconstitutional. Writing for the majority, Stewart presents two arguments against the North Carolina statute. First, Stewart observes that by making death a mandatory penalty for first-degree murder, the burden of the sentencing decision is simply shifted back to the guilt phase of the trial and left unguided. Second, Stewart condemns the death penalty scheme in North Carolina on the grounds that it fails to provide the defendant in capital cases with an individualized sentencing determination. According to Stewart, contemporary standards of decency demand that the defendant in a capital case be treated with individual consideration. As the death penalty is qualitatively different from any other sentence, the need for reliability in the determination that death is the appropriate punishment in a specific case is qualitatively different too.11 Individualized sentencing is required to meet this need. In Furman v. Georgia, the Supreme Court identifies a problem in the imposition of the death penalty, a problem of arbitrariness. In Gregg v. Georgia and Woodson v. North Carolina (1976), the Court makes clear that it accepts as the answer to this problem a capital punishment system that seeks to maximize the reliability of the determination that the appropriate punishment is imposed in a specific case. In Woodson, Stewart says death is different from any other punishment, and “Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”12 To the extent that death is different from all other penalties, the Court calls for a system in which the decision to sentence someone to death can appear to correspond to a truth unchanged by those who seek it, an unvarying truth that can be discovered or revealed when it is sought by standard means. As defined by the Oxford English Dictionary, “reliability” is the quality of being reliable or trustworthy, safe, sure.13 With Gregg and its companion cases, the Court identifies a capital punishment system it believes can realize death sentences that are well and truly deserved. However, reliability is also defined by the dictionary as “the extent to which a measurement made repeatedly in identical circumstances will yield concor-

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dant results.” This additional sense of reliability suggests that the system the Court requires for capital punishment to pass constitutional muster must also be able to assure us that any sentencing authority hearing the same aggravating and mitigating evidence will reach the same conclusion and make the same sentencing decision. This means that what makes a decision to sentence a defendant to death reliable is a matter of the regularity of the procedure and the diligence of those following the procedure but also something more. By striking down North Carolina’s death penalty statute, the Court makes this clear. In Woodson, the Court holds that a death sentence can be reliable only when it is imposed under a system that gives the sentencing authority the opportunity to consider the unique facts of the crime and the circumstances of the criminal. In other words, the reliability of the sentence depends not only on the sentencing authority’s ability to follow the law but also on the opportunity the sentencing authority has to impose a sentence that registers or reflects the defendant’s real blameworthiness.14 This view is reiterated in Lockett v. Ohio (1978) two years later.15 Ohio’s death penalty statute was challenged, in part, on the grounds that it did not permit the sentencing judge to consider as mitigating factors the defendant’s character, prior record, age, lack of specific intent to cause death, and relatively minor part in the crime.16 The statute provided that once a defendant was found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the sentencing judge had to impose the death penalty unless, after “considering the nature and circumstances of the offense” and the “history, character, and condition” of the defendant, the judge determined that at least one of three mitigating circumstances was established by a preponderance of the evidence.17 The Court concluded that the Eighth and Fourteenth Amendments require that the sentencer “not be precluded from considering as a mitigating factor any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”18 In his majority opinion, Chief Justice Warren Burger suggests that the Court’s interest in reliability reflects a hope that under revised sentencing statutes states may impose death sentences that are not simply consistent but also (metaphysically) accurate. In Lockett v. Ohio, the Court again emphasizes the qualitative difference between death and other penalties. But, significantly, Burger does not dwell on the more existential aspects of

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this difference. Instead, he focuses on the fact that in capital cases postconviction remedies are not available.19 He does so to justify the need for individualized sentences in capital cases, but in so doing he expresses the Court’s faith that in capital cases it is possible to believe that death sentences reflect the real blameworthiness of the defendants on whom they are imposed when the sentencing authority is given the opportunity to consider information about the defendant and the circumstances of the defendant’s crime. In noncapital cases, a variety of “flexible techniques” may be used to “modify” an initial sentence.20 In capital cases, such techniques are not available; once a death sentence is executed, mistakes in the determination of blameworthiness and the appropriate severity of the punishment cannot be unmade. When the choice is between life and death, the Court says that the risk of imposing an unwarranted penalty is unacceptable.21 Thus death calls for a greater degree of reliability;22 the initial sentence must be appropriate the first time. The Court’s presupposition of a reality that is used as a standard for the justness or appropriateness of a particular sentence is often more implicit than explicit in the Court’s holdings. However, occasionally, there are overt expressions of this presupposition. In Eddings v. Oklahoma (1982), for example, Justice Sandra Day O’Connor stresses in her concurring opinion that the Court has gone to “extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.”23 With this remark, O’Connor suggests that it is the integrity of the process that guarantees the appropriateness of the outcome. But when O’Connor goes on to explain why it is necessary for the Court to take such extraordinary measures, she indicates that the appropriateness of the outcome is not determined by this process but rather by an objective reality that is external to it. According to O’Connor, the Court must go to extraordinary measures to ensure that the death penalty is not imposed “erroneously.”24 This kind of language raises an obvious question: how can it be possible to err when imposing a penalty? Scholars have commented on the Court’s presupposition of a reality by which an error in sentencing might be recognized as such. In an influential article on the U.S. Supreme Court’s post-Furman death penalty jurisprudence, law professor Margaret Jane Radin observes of Lockett that the

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requirement that aggravating and mitigating factors be weighed is a requirement aimed at greater accuracy in making a moral judgment.25 Radin notes that such an aim implies that a moral truth exists adequate enough to make sense of the notion of moral error.26 According to Radin, Lockett v. Ohio is properly understood as articulating a “risk of error” rule. She says the Court supports constitutionalizing a requirement that the sentencer must consider all mitigating evidence proffered because the risk of ascribing too much blame to, or inflicting too much punishment on, a particular defendant is too great when the sentencer is prevented from considering any information that might support a penalty less than death.27 As Radin observes, the very idea of such a risk implies that what is morally correct is more than a matter of what the Court says from time to time. As long as arbitrariness and inconsistency are considered to be meaningful categories of reproach, the Court must presuppose that there exists some consistent moral standard having an external source.28 In her analysis of the Supreme Court’s post-Furman jurisprudence, Radin emphasizes how this moral standard—which she identifies as “the human dignity or personhood standard”—engenders a “super due process procedural limitation” on punishment.29 A system of “super due process for death” emerges, Radin claims, when the Supreme Court finds that the process by which a penalty is imposed, and not just the penalty itself, may violate the Eighth Amendment’s prohibition against cruel and unusual punishment. If the process by which the penalty is imposed fails to accord the individual the respect due her uniqueness, the penalty is unconstitutional. However, and this is what I want to emphasize here, the assumption of accuracy in moral judgment in the Supreme Court’s post-Furman death penalty jurisprudence also allows the Court to keep process and justice separate. As Radin notes, judicial decisions are always made under uncertainty, in a nonideal world.30 In this context, the process by which people are sentenced to death under the states’ revised capital punishment statutes is endorsed by the Court as the best means available to us to arrive at or achieve the right sentencing decision. As we have seen, a list of aggravating factors is provided by law. In a capital case, the sentencer is instructed to identify the presence of any such factors and weigh them against any mitigating factors the defense presents. The Court accepts this system because it promises that cases with similar features will be treated in a similar manner. However, the Court does not identify justice with this process, at least

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not yet. As we have seen, the Court identifies justice with the outcome— the accuracy of the judgment of what the criminal deserves—and so each individual must be afforded the opportunity to provide the sentencer with information about her character and the unique circumstances of her crime. When the sentencer’s discretion is guided, the sentencer is prevented from making a decision about this information dictated by the prejudices formed in and perpetuated by an “imperfect social order” (one in which there is an inequitable distribution of wealth and opportunities, for instance).31 So constrained, however, the sentencing authority is free to make a sentencing decision on the basis of what the defendant truly deserves. While we cannot be sure that the sentencing authority will be able to realize this ideal (or indeed, if that ideal is ever actually realized in any particular case), it can be promised to those who virtuously carry out the process. Thus, the “real world”—the “external source” of the ideal—ultimately validates the moral decisions we make in this world. In his majority opinion in Lockett v. Ohio, Burger makes this clear when he explicitly relates the accuracy of sentences in capital cases with the legitimacy of the use of state power. Acknowledging that no perfect procedure exists for deciding when governmental authority should be used to impose death, Burger argues that the risk that this authority will be used to impose death when it should not is too great when the sentencing authority in a capital case is prevented from “giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation.”32 Such factors may call for a less severe penalty than death, and to risk ignoring this possibility is to risk an abuse of power.

II. The Promise of Reliability So far, I have argued that the constitutionality of the death penalty is restored after Furman v. Georgia only when the Supreme Court finds it possible to believe that sentencing decisions in capital cases may correspond to the convicted defendant’s true degree of guilt. Such an argument may seem unnecessary to make. Retribution—one of two possible philosophical justifications the Supreme Court recognizes for the death penalty33—is predicated on the notion that punishment is morally accept-

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able only when a wrong has been committed and when the severity of the punishment imposed is equal to the severity of the crime committed.34 Nevertheless, I make this argument to illuminate the metaphysical character of the Court’s death penalty jurisprudence at this stage. To illuminate the metaphysical character of the Court’s post-Furman legal philosophy, it is necessary to call attention to the fact that the Court assumes that what a criminal deserves has an “objective” reality. More importantly, it is necessary to show how the Court assumes it is possible for the sentencing authority in a capital case to apprehend this reality. As Justice William Brennan remarks in Furman v. Georgia, men are fallible and so inevitably innocent people are sentenced to death.35 No justice takes issue with this statement. As I have already suggested and will elaborate in the following discussion, the justices recognize our limitations as human beings. However, despite recognizing these limitations, the Court does not give up on our ability to impose what it describes as an absolute penalty in a secular society.36 Instead, the Court depends on the promise implied by the procedures that states put in place to assure us of the “reliability” of the determination that death is appropriate in a specific case. These procedures do not reveal what is true; that is to say, they do not discover or establish what a criminal deserves as punishment. Rather, they promise us that this reality may ultimately validate sentencing decisions made in the nonideal world. The logic of the Court’s faith in the procedures that come out of Gregg and Gregg’s companion cases, and of the Court’s belief in a real world that ultimately validates decisions in this world, is captured in the second stage of Nietzsche’s history of an error. Again, Nietzsche describes the second stage of the history of an error in the following way: 2. The real world, unattainable for the moment, but promised to the wise, the pious, the virtuous man (“to the sinner who repents”). (Progress of the idea: it grows more refined, more enticing, more incomprehensible—it becomes woman, it becomes Christian . . . )37

According to Nietzsche, as metaphysics unfolds, the idea of the true becomes more sophisticated and more opaque to reason. As a result, the “real world” is not immediately intelligible to men and women in this world anymore. Nevertheless, one trusts in the real world. Although no logic can prove it, nor reason be given to believe it, “everything firm” is promised there, and one

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repents in hopes that by acknowledging one’s partiality and sinfulness in this world one might eventually know the certain solidity of that one. The Court’s appreciation of the true as an idea that is not easily grasped by ordinary people with their crude, uncultivated sense of reason is evident in the Court’s distrust of sentencing authorities in capital cases. As we have seen, the Court is aware that sentences in capital cases may be imposed “out of whim, passion, prejudice, or mistake.”38 In her discussion of the context in which the Court develops “super due process for death,” Radin reiterates the grounds of this suspicion when she claims that all our actions take place in a nonideal world, a “problem” that relates “not only to the ability of any social institution to make the ‘right’ decisions with certainty, but also the larger problem of whether such decisions could be ‘right,’ even if made with certainty, given an imperfect social order.”39 Similarly, in Lockett v. Ohio, Burger assumes that the procedures for deciding when governmental authority should be used to impose death sentences are not “perfect.” In other words, one can never be certain that the death penalty is imposed only when it is appropriate. At the same time, the Court believes that even if it can never be certain that the death penalty is imposed only when it is appropriate, it can have faith that when certain procedures are followed the sentence imposed may be truly deserved.40 As we have seen, in Lockett the chief justice calls for a capital punishment system that is so “reliable” that it is not necessary to be able to modify initial sentences. Thus, while Burger acknowledges the limits of the world in which the sentencing authority makes its actual determination of a criminal’s blameworthiness, he does not give up on the possibility that by following the procedures embraced by the Supreme Court in Gregg v. Georgia and Woodson v. North Carolina “appropriate” sentencing determinations may be made. Such faith on the Court’s part that the defendant’s blameworthiness has an objective character, let alone that a sentence imposed by a sentencing authority might correspond to it, is reminiscent of Nietzsche’s description of the faith of the sinner who believes in the peace of the next world. This peace cannot be demonstrated, but it can be promised to those who deny their instincts, passions, and prejudices in this world and follow the rules set down for their salvation. The Supreme Court indicates that if state courts scrupulously follow procedures that state legislatures put in place, they may similarly be rewarded with justice.

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III. Judgment and the Twin Objectives of Capital Punishment A just sentencing decision is promised to those who obediently follow the law. However, it is difficult to be virtuous. This is particularly true for those who seek to carry out the procedures of the newly “reliable” capital punishment system that emerges from the Court’s holdings in Furman, Gregg, Woodson, and Lockett. This system is characterized by two objectives. Writing for the majority in Eddings v. Oklahoma, Justice Lewis Powell observes that since the early days of common law the legal system has struggled to “develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.”41 He calls these aspirations the “the twin objectives of the capital punishment system.” The first requires that the system generalize between cases, classify experiences, and routinely respond to groups of people on the basis of similarities. The second aim concerns respect for the uniqueness of different individuals and cases that enter the system. It requires that the system acknowledge the specificity of each person and each crime and respond to the particularity of every case. As noted before, these two objectives are the poles between which judgment has been stretched since Aristotle observed that justice calls for like to be treated alike and unlike to be treated unalike. In the Politics, Aristotle states that justice is equality.42 But as soon as he says this, he immediately qualifies his statement. It is thought that justice is equality, and so it is, he says, but not for all persons. Justice is equality only for those who are equal. For those who are unequal, equal treatment is not just. Indeed, Aristotle warns, “We make bad mistakes if we neglect this ‘for whom’ when we are deciding what is just.”43 In Eddings, the Court echoes Aristotle’s warning. In its ruling, the Court states that capital punishment must be imposed consistently. However, at the same time, the Court notes that a consistency produced by ignoring individual differences is a “false consistency.”44 A false consistency is procedurally regular but inconstant when it comes to the quality of its outcomes. There is a tension between the twin objectives of the capital punishment system, however, as is often noted. In her discussion of the Supreme Court’s post-Furman death penalty jurisprudence, Radin, for instance, claims that by embracing the twin objectives the Court puts itself in an impossible position. Realizing that discretion leads to arbitrariness, that is to

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say, a failure to treat people equally and therefore a failure to treat them with respect, the Court finds in Furman v. Georgia that unfettered jury discretion in capital cases is unconstitutional. However, the Court also realizes that a lack of discretion leads to inflexibility, that is to say, a failure to treat people as unique individuals and hence, again, a failure to treat them with respect. This line of thinking is reflected in Woodson v. North Carolina and Lockett v. Ohio. As a result, we confront a “dilemma of discretion.” We cannot simultaneously maximize the extent to which we satisfy both of these moral requirements.45 What is more, there is no level at which they can be “harmonized.”46 Given the dilemma of discretion, Radin concludes that death cannot be a permissible punishment, and she predicts that the Court will eventually come to this same conclusion.47 However, a close reading of Powell’s characterization of the twin objectives in Eddings v. Oklahoma also suggests an alternative “resolution” of the dilemma Radin identifies. In Eddings, Powell indicates no hierarchical relation between the two objectives; one follows the other on the page, but neither defines the final principle of adjudication in the capital punishment system. What is more, they are joined together with a confusing conjunction. When Powell says the legal system has struggled to “develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual,” the phrase “but also” suggests that the twin objectives may actually oppose or negate one another. At the same time, “at once . . . but also” indicates that these two aims must be added together and thus that they somehow extend or complement one another. In brief, Powell’s articulation of the twin objectives forces lower courts to confront a relationship between the general and the particular that is given but not defined. Rather than suggesting that this relationship is an impossible one to negotiate, Powell’s language attends to its subtle nature and commands lower courts to do the same. Consequently, when a person is charged with a capital crime and enters the capital punishment system, each court is compelled to (re)negotiate that relationship for itself. This analysis of Powell’s articulation of the twin objectives reveals an impasse at the heart of modern death penalty jurisprudence. As Powell describes this impasse, however, it is not simply a matter of incompatible or contradictory claims. Significantly, the particular and the general are related by a “but also”—thus, the two objectives seem to oppose one another

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at the same time that they imply and depend on each another. This is a key point, not only because it explains why the twin objectives do not necessarily lead the Court to abandon the idea of a “reliable” capital punishment system, but more importantly because it recognizes that neither one of these objectives is conceptually possible without the other. Generalizations are derived from observation of specifics; specifics emerge as such on the basis of generalizations. Thus, one perspective cannot dominate or subsume the other; they are mutually dependent on their differences, and this dependence precludes any kind of easy synthesis in which one objective could be subordinated to the other.48 As a result, in capital cases sentencing authorities are obliged to shift constantly back and forth between the particular and the general, and the outcome of that perpetual alternation may never be formally or finally determined. Judgment always takes place in a context that itself figures in the decision about what is just to the extent that judgment entails determining those respects that will define equality and those respects that will define inequality. As Aristotle reminds us, equality is not a principle that one brings to bear on every judgment so much as it is a topic one must consider in the context of judging. The prospect of having to attend to the determinations of equality in every death penalty case is daunting. As Justice Antonin Scalia observes in his dissenting opinion in Walton v. Arizona (1990), courts are inundated with petitions for certiorari to review adverse judgments arising out of some permutation of either Furman or Lockett.49 In the face of this “permanent floodtide” of cases, retreat is understandable. Thus, Scalia’s renunciation of the twin objectives of the capital punishment system in Walton is not surprising. Nevertheless, it is informative. In justifying his decision to disregard the Woodson-Lockett line of cases, Scalia indicates that he does not believe that the relationship between the twin objectives can be negotiated without generating effects of uncertainty and unpredictability. That is to say, he does not believe the existing system’s promise of reliability. He doesn’t give up on the promise, though; instead he suggests that if we are to realize that promise, the rules and principles guiding judgment must be given in advance. As I have already noted, in Walton v. Arizona Scalia renounces the twin objectives of the capital punishment system. More correctly, he eschews one of those objectives. In Walton, Scalia states that as the Furman line of cases that enshrine the principle of equal treatment and the Woodson-Lockett

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line of cases that are the source of the principle of individual consideration cannot be made compatible, he will no longer uphold the Woodson-Lockett line of cases. Scalia chooses to dismiss the Woodson-Lockett line of cases because, he claims, it bears no relation to the text of the Eighth Amendment. However, Scalia is quite candid about the fact that his frustration really arises only because the principle of individual consideration is “rationally irreconcilable” with the principle of equal treatment.50 He confesses, “My initial and my fundamental problem . . . is not that Woodson and Lockett are wrong, but that Woodson and Lockett are rationally irreconcilable with Furman. . . . Since I cannot possibly be guided by what seem to me incompatible principles, I must reject the one that is plainly in error.”51 According to Scalia, the Court insists on the impossible when it requires sentencing authorities to treat like criminals alike while taking into account the fact that no two criminals or their crimes are ever identical. If capital punishment is to be imposed and carried out in the United States as the law permits, Scalia claims, the Court must settle on one principle or the other. In Callins v. Collins (1994), Scalia goes further.52 In an opinion concurring with the Court’s decision to deny a petition for a writ of certiorari, Scalia writes that the two commands the Court has attached to the imposition of the death penalty are both “invented.”53 Nevertheless, he is willing to abide by one of them. In this case, he does not explain why he does or should choose one principle over another. Instead, he simply reiterates his conclusion in Walton that the incompatibility of the Court’s Furman and Lockett lines of jurisprudence commends a single conclusion—“to wit, that at least one of these judicially announced irreconcilable commands which cause the Constitution to prohibit what its text explicitly permits must be wrong.”54 In sum, Scalia observes two incompatible principles and claims that, by virtue of this incompatibility alone, one of the two must be incorrect. The validity of this deduction is questionable, but Scalia’s reasoning is interesting because it indicates the conditions that he requires to judge.55 In his opinions in Walton v. Arizona and Callins v. Collins, Scalia implies that when one judges, one is guided by principles, principles that one applies to cases. He says as much in Walton when he explains that he cannot ignore the incompatibility of the twin objectives of the capital punishment system because “I would not know how to apply [Woodson and Lockett]—

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or, more precisely, how to apply both them and Furman—if I wanted to.”56 Scalia depicts judgment in terms similar to those that Immanuel Kant in The Critique of Reason uses to describe determinant judgment.57 According to Kant, judgment in general is the faculty of thinking the particular as contained under the universal. When the universal is given as a principle, rule, or law, the judgment that subsumes the particular under the universal is determined.58 When no principle, rule, or law is given, we still have to think the particular as contained under the universal when we are called on to judge, but we need to devise a principle or a law to guide us. Kant calls this kind of judgment reflective judgment. To the extent that Scalia refuses or understands himself to be unable to judge without a given law or principle, he reinforces the identification of his conception of judgment with determinant judgment alone. As Scalia is the first to admit, when there are conflicting laws or principles, he is lost. He does not know what to do except to conclude that one of them is wrong. He cannot judge until there is a clear principle that he recognizes as having the authority to direct him in his disposition of a particular set of circumstances. However, Scalia does not give up on the possibility of “reliable” sentences. On the contrary, he claims that only when the sentencer is guided by a single rule or coherent set of principles can we achieve this end. In Eddings v. Oklahoma, Powell affirms another option. To explain this option, I turn again to Kant. In The Critique of Judgment, Kant explains how it is possible to judge in the absence of an overarching principle under which one would otherwise subsume the particular. Such is the case of aesthetic judgment. Aesthetic judgment is not rule governed. No general rule, law, or principle is given in terms of which the particular thing being judged is automatically identified and arranged. Instead of seeking a rule outside of the particular thing to be judged, the person judging discovers or uncovers a rule in the articulation of judgment. Fear that this kind of judgment may be corrupted by whim, passion, or prejudice—emotions, desires, or interests that the Court has found to render death penalty decisions unconstitutional—is understandable. However, according to Kant, an aesthetic judgment lays claim to a universally valid delight. The grounds of aesthetic judgment are provided by the spontaneous, sensible response of the person judging to the representation of that which is being judged, and this response is based on the existence of

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universal subjective condition. The judge is not indifferent to what she perceives, but she has no desire for the actual object being judged. Her judgment is guided instead by what Kant calls “common sense,” the principle that determines what pleases and displeases by means of a feeling with universal validity.59 Confronted with the “dilemma of discretion,” common sense permits the sentencer to find a principle not given by a legislative body in its negotiation of the two principles of the capital punishment system, equal treatment and individual consideration, and to make a decision expressing a claim of universal validity. Kant warns that universal validity may not be equated with objectivity; however, I am not arguing that the sentencing decisions made in the post-Furman capital punishment are presumed to be objective. Rather, I am suggesting that these decisions are taken to be reliable. That is to say, they are understood to correspond to a truth that we cannot seize but that is promised to us if we are good. Faith in this promise is perhaps most evident in its loss. Hence, the faith the Supreme Court has in the system that emerges from its decisions in Gregg, Woodson, and Lockett is obvious in Justice Harry Blackmun’s famous dissenting opinion in Callins v. Collins. In that opinion, Blackmun passionately rails against his fellow justices for continuing to believe in a “delusion” that the post-Furman capital punishment system accurately and consistently determines which defendants deserve to die. Blackmun understands that lower courts are faced with conflicting constitutional demands. The Supreme Court has ruled that the death penalty must be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice, and if the death penalty cannot be administered consistently and rationally, it may not be administered at all. However, the Court has also said that to be fair a capital sentencing scheme must treat each person convicted of a capital offense with the “degree of respect due the uniqueness of the individual.” This means that the sentencer must always be provided with “avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death.”60 Despite the tension between these two objectives, however, Blackmun does not automatically conclude, like Scalia, that they cannot be reconciled. According to Blackmun, “Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow.”61 In other words, Blackmun understands the

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courts as fashioning procedural solutions for the problems of a nonideal world, solutions that promise “fair, equitable, and reliable outcomes.” Blackmun’s problem is not the incompatibility of the twin objectives of the capital punishment system, then, but the fact that in the area of the death penalty, the Supreme Court fails to make states come up with these solutions. In other words, Blackmun finds that the decisions made by lower courts are not properly reflective and the Supreme Court is not doing its duty of providing meaningful judicial oversight to make sure they are. Consequently, he famously concludes: From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored—indeed, I have struggled—along with a majority on this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative.62

In this passage, Blackmun expresses frustration not as much with the capital punishment system as with his fellow justices for accepting what he calls the “mere appearance of fairness” instead of real justice. Nevertheless, his faith in the assumption that it is possible to have real justice has clearly been shaken. It is “virtually self-evident” to him that a reliable capital punishment system, one in which those who truly deserve to die are accurately and consistently identified, cannot be achieved. In so concluding, however, he reveals his continued belief in a two-world metaphysics. This is clear when he calls attention to the distance between appearance and reality, delusion and hard truth. Blackmun no longer believes the promise of reliability, but even he has not given up on the idea of a standard to which we may look for justice and legitimate authority.

3 The Consolation of Common Sense in the Regulation of Capital Punishment 3. The real world, unattainable, undemonstrable, cannot be promised, but even when merely thought of a consolation, a duty, an imperative. (Fundamentally the same old sun, but shining through mist and scepticism; the idea grown sublime, pale, northerly, Königsbergian.) —Friedrich Nietzsche, Twilight of the Idols

As we have seen, the twin objectives of the post-Furman capital punishment system—equal treatment and individual consideration—give rise to a tension that some justices on the Supreme Court find unbearable. Justice Antonin Scalia, for example, says it is not only irrational but also impossible to make a sentencing decision guided by these two principles; they contradict one another and cannot be reconciled, leaving the sentencing authority without any idea of how to make a good decision in a capital case.1 Other justices, however, find a way to affirm the validity of sentencing decisions in capital cases. In this chapter, I show that they succeed by assuming a universal reason or common sense of the kind that makes aesthetic judgments possible. Like the appropriateness of a death sentence, the appropriateness of an aesthetic judgment cannot be demonstrated or logically proven. Even if one is fortunate enough to receive formal training about art, one’s evaluation of a particular piece may not necessarily be correct. Nevertheless, when one spontaneously exclaims “This is beautiful!” one claims the assent of all other rational beings. According to Kant, this claim is conditional—

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when one claims that something is beautiful one insists only that everyone else ought to find it beautiful, not that everyone else must find it so—but it is “fortified” by a “ground common to all” that allows one to make judgments of taste with reason to believe that they are not purely subjective.2 The “ground common to all” that allows one to make judgments of taste is common sense. According to Kant, if we are not completely skeptical and accept that cognitions admit of communication, we must presume a sense that makes it possible to arrive at some sort of consensus.3 That sense is common sense, which Kant defines as “a subjective principle . . . which determines what pleases and displeases, by means of feeling only . . . but yet with universal validity.”4 In this chapter, I argue that this principle saves death penalty sentences from being completely arbitrary when the Supreme Court indicates that it will no longer continue to be closely involved in the regulation of the sentencing decision in capital cases. That the Court presupposes the existence of common sense is clear when it explains that the language regulating sentencing decisions in capital cases is sufficient to ensure that the sentences imposed are reliable. As Werner Hamacher observes in a different context, if language is understood as anything more than “a nonhomogeneous chaos of positing acts,” it must “generate the possibility of its meaning.”5 I claim that, in a manner familiar from the work of Jürgen Habermas, the Court takes the meaningfulness of regulatory language in capital cases to imply a community of reason as the possibility condition of that meaningfulness. When a judge or jury is given no clear idea how it is to make a good decision in a capital case, the presumption of a community of reason justifies the Court’s assumption that a sentencing decision in a capital case is fair and accurate. This chapter has four sections. To set up the discussion of common sense and the language of regulation, the first section of the chapter briefly relates Robert Weisberg’s argument about the Supreme Court’s 1982 decisions “deregulating death.”6 The second section of the chapter explains how, by presuming common sense, it is possible for the Court to stop insisting on the regulation of sentencing decisions in capital cases without admitting that it has given up on reliable death sentences. The third stage of Nietzsche’s history of metaphysics corresponds with the metaphysics of this presumption, so I avail myself of Nietzsche’s history to explain how it is possible for the Court to conceive of common sense as a regulatory principle. In the third section of the chapter, I demonstrate what I have argued

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so far. In a reading of Zant v. Stephens (1982), I draw attention to the Court’s confidence in the meaningfulness of the language with which the sentencing decision in a capital case is regulated. I show that this confidence must be based on the presumption of the common sense of a communication community, a community implied and presupposed by the use of metaphors in sentencing instructions. Finally, in the fourth section, I discuss McCleskey v. Kemp (1987), a case in which the Court’s presumption of common sense is directly challenged.7 This challenge reveals once again the grounds of the Court’s belief in the reliability of the death penalty system, but it also signals the weakening of its faith.

I. “Deregulating Death” As discussed in Chapter 2, after Furman, states rewrite their death penalty statutes and present the Court with sentencing schemes designed to guide sentencing discretion in capital cases. When these schemes satisfy the Court that sentencing decisions will be fair and accurate, the Court restores the constitutionality of capital punishment. The procedures that the Court finds acceptable reduce the risk that the sentencing authority’s final decision is determined by someone’s passing fancy or personal bias, and, simultaneously, allow the sentencing authority to take into consideration the unique character of the criminal and the unique circumstances of the crime. As we have seen, state legislatures are forced to walk a fine line when they revise their death penalty statutes. Sentencing schemes that limit the sentencing authority’s discretion too much may be ruled unconstitutional by the Supreme Court. At the same time, schemes that fail to limit the sentencing authority’s discretion enough may also be struck down. In Godfrey v. Georgia (1980), for instance, one of the aggravating circumstances specified by Georgia’s death penalty statute was challenged on the grounds that it was constructed by the Georgia Supreme Court in such a broad and vague fashion that it violated both the Eighth and the Fourteenth Amendments to the Constitution.8 According to Georgia’s statute, a person could be sentenced to death if the crime of which he had been found guilty was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”9 What murder cannot be described this way? Godfrey asked. The Court agreed

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and found that the Supreme Court of Georgia had erred in affirming the judgments of the trial court. According to the majority opinion, “a person of ordinary sensibility” could fairly characterize almost every murder in these terms.10 Consequently, this particular statutory aggravating circumstance did not imply an inherent restraint on the arbitrary and capricious infliction of the death sentence. As the sentencing judge did not give the jury any indication of how it was to interpret the language of the statute, “the jury’s interpretation . . . can only be the subject of sheer speculation.”11 As a result, the Court concludes, there is no way to be sure that the sentence in this case is reliable. In Godfrey, the U.S. Supreme Court goes to great lengths to protect the integrity of the particular death penalty system that it more or less calls for with its decision in Furman v. Georgia, and that it helps establish with its decisions in Gregg v. Georgia (1976) and Woodson v. North Carolina (1976).12 However, such efforts are difficult to sustain. In “Deregulating Death,” Weisberg speculates that the economic and intellectual expense becomes too much for the Court to bear.13 First, there is the cost of accommodating a dramatic increase in the number of plausible claims of doctrinal error. Then, there is the cost of keeping up the appearance, let alone the reality, of doctrinal rigor. For Weisberg, this explains why, in 1982, the Court abruptly stops trying “to dignify the once lawless death penalty with the reassuring symbolism of legal doctrine.”14 Weisberg argues that, at the end of the Supreme Court’s 1982 term, four decisions signal the Court’s intention to withdraw from the business of the death penalty. The cases he discusses are Zant v. Stephens, Barefoot v. Estelle (1983), Barclay v. Florida (1983), and California v. Ramos (1983).15 In his analysis of these cases, Weisberg stresses how the Court’s decisions in all four sound two themes. The first theme is that federal courts are to sharply reverse their use of the habeas corpus jurisdiction in death penalty cases.16 The second theme is that federal courts are no longer to regulate what a penalty jury hears, except to approve the procedures by which the jury gets to hear as much as possible.17 As Weisberg interprets the Court’s holdings vis-à-vis the first theme, he says that the Court implicitly instructs federal courts to refuse petitions that seek to test the legality of the detention or punishment (rather than the determination of guilt) of defendants sentenced to death. Barefoot v. Estelle illustrates Weisberg’s claim well. In this case, the petitioner had challenged

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the legality of his death sentence on the ground that psychiatrists, who testified during the sentencing phase of his trial about his future dangerousness, were not competent to predict whether he would continue to pose a threat to society. The District Court rejected his claims and affirmed his conviction and sentence. Without actually considering the merits of the appeal, a Court of Appeals subsequently refused to stay the petitioner’s scheduled execution. In Barefoot v. Estelle, the Supreme Court holds that the Court of Appeals did not err in refusing to stay his death sentence. Although the Supreme Court claims the Court of Appeals did nothing wrong, it does allow that the Court of Appeals “moved swiftly” and admits that “it would have been advisable” for the Court of Appeals to expressly affirm the judgment of the District Court.18 But the Supreme Court also finds that the District Court did not itself err on the merits of denying this habeas corpus petition. What is more, as if to mock its own history of concern with the integrity of the death penalty system, the Supreme Court concludes its opinion by saying, “to remand to the Court of Appeals for verification that the judgment of the District Court was affirmed would be an unwarranted exaltation of form over substance.”19 The second theme Weisberg identifies in the Supreme Court’s 1982 term is that federal courts are no longer to regulate what a penalty jury hears. This theme may not sound like a radical departure from the message of the Court’s decisions in Woodson v. North Carolina and Lockett v. Ohio (1978), when the Court rules that state death penalty statutes must permit defendants in capital cases to introduce as mitigation anything that might be relevant to an argument for mercy.20 However, as Weisberg points out, the Supreme Court’s decisions in 1982 imply rather that the Supreme Court is no longer interested in having the federal system of review be involved in deciding on the value—mitigating or otherwise—of what jurors hear during the penalty phase of a capital trial. For instance, in California v. Ramos, the Supreme Court holds that the Constitution does not prohibit a state from providing a sentencing jury in a capital trial with instructions that include information about the governor’s power to commute a life sentence without possibility of parole (LWOP). The defendant argued that such instructions invite jurors to consider factors that are foreign to the task of deciding whether the defendant should live or die. Specifically, instead of focusing jurors’ attention on “the character and record of the individual offender and the circumstances of

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the particular offense,” these instructions encourage jurors to speculate about the governor’s use of his power to commute LWOP, should they choose to impose it. What is more, as jurors are not informed that the governor also has the power to commute a capital sentence, the defendant argued that California’s jury instructions leave jurors with the impression that the only way they can make sure the defendant will never be released is to sentence him to death. The California Supreme Court was convinced by this argument and remanded the case for a new penalty phase. But the U.S. Supreme Court is not convinced. According to the Supreme Court, the reliability of the sentence the jury decides in a capital case is not negatively affected by the information provided by the state in its instructions to jurors.21 Speculation about the power of the governor to commute a life sentence without possibility of parole would call attention to the issue of the defendant’s future dangerousness. But calling attention to this issue during the sentencing phase of a capital trial is not misleading because the defendant can always offer evidence or argument to counter any concern about the threat he poses to society.22 Nor is calling attention to this issue during the sentencing phase of a capital trial unconstitutional: in Jurek v. Texas (1976), the Court approves a sentencing scheme in which the sentencing authority is explicitly directed to consider the future dangerousness of the defendant.23 This argument certainly seems to support Weisberg’s claim about the Supreme Court’s disengagement from the business of death penalty regulation. For in making this argument, the Supreme Court overlooks the fact that the trial court’s instructions to the sentencing jury are not supposed to serve the same function as the prosecutor’s presentation of aggravating factors during the penalty phase of a capital trial. The prosecutor is supposed to make a case for the death penalty; the trial court’s instructions are supposed to guide the sentencing jury so it will know how to properly use evidence in its sentencing decision. However, the Court is so eager to “defer to the State’s identification of the Governor’s power to commute a life sentence as a substantive factor to be presented for the sentencing jury’s consideration,” that it does not seem to care about the conflation of aggravation and instruction in its defense of California’s sentencing jury instructions.24 After showing how the Supreme Court begins deregulating death in 1982, and implicitly criticizing the Court for doing so, Weisberg ultimately concludes that deregulation is a good thing. According to Weisberg, the

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regulation of capital punishment serves primarily to reassure professional actors in legal institutions that the sanctions they inflict follow from the demands of neutral, disinterested legal principles. Regulation thus obscures the fact that the sanctions legal professionals inflict are really a matter of their own choice and power.25 Indeed, Weisberg claims that law was invented to give people the illusion that they are not able to make their own judgments.26 For instance, whereas there was no law in death penalty cases prior to Furman v. Georgia, Weisberg observes the institution of a formal trial-like penalty phase after Furman. With this institution, a decision that is ultimately irreducible to legal terms is identified with a fact-finding mission. The penalty phase of a capital trial is regulated as if it were concerned with the same kind of issues as the guilt phase. Thus, juries are instructed to treat evidence during the penalty phase of a capital trial as if this evidence were being used to convict the defendant of a crime, rather than to determine what she deserves as a punishment. Weisberg also observes that the systematic formula for comparatively weighing aggravating and mitigating circumstances works in such a way that, when the formula produces a certain result, the jury seems to have no choice but to vote for death. Such formality puts the defense at a disadvantage, Weisberg says, because its only recourse is to appeal to emotion, and that appeal may not sit well with a jury.27 But it is not for the defense’s sake that Weisberg concludes deregulation is for the best. Rather, Weisberg’s argument is that, when we contemplate executing people, we ought to address the moral and political questions that arise. Citing Stanley Milgram’s famous experiment in which volunteer “teachers” proved themselves willing and able to inflict apparently horrific pain and suffering on others when they were instructed to do so by a reassuring professional authority figure, Weisberg claims that it is a harmful illusion for anyone to believe she bears no responsibility in making a choice.28 If we are going to have a death penalty, Weisberg says, we should at least acknowledge that we are making decisions.

II. The Regulating Idea Weisberg concludes his analysis by suggesting that the Supreme Court seems to have decided, “in its own clumsy and often dishonest way,”

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that “it no longer wants to use constitutional law to foster legal formulas for regulating moral choice at the penalty trial.”29 I am not convinced the Court completely abandons this project, however. Or, rather, I interpret the Court’s death penalty jurisprudence in terms that allow for more metaphysical subtlety. These terms are borrowed from the third stage of Nietzsche’s history of metaphysics. At this stage: 3. The real world, unattainable, undemonstrable, cannot be promised, but even when merely thought of a consolation, a duty, an imperative. (Fundamentally the same old sun, but shining through mist and scepticism; the idea grown sublime, pale, northerly, Königsbergian.)30

Nietzsche says that, at this stage, the real world, the world of truth and being, is no longer accessible to us. No matter how virtuous we might be, we will never know things in themselves. That is to say, even with the greatest piety, attention, and care, we cannot expect to ever know the true nature of the world; our knowledge of it will always vary according to our different sensibilities and sensitivities. Yet, at this stage, we are not completely bereft of the real world. Although we cannot expect to have it or to know it, we still have the idea of it. And from the fact that we have this idea, we suppose something that is the ground of this idea. Thus, in a moment of skepticism and potential dissolution, Nietzsche says we are provided with consolation by “the same old sun.” With this in mind, I argue, contra Weisberg, that while the Supreme Court may not be able to sustain the appearance of doctrinal rigor at the stage in its capital punishment jurisprudence that Weisberg analyses, it does not succumb to skepticism either. On the contrary, instead of becoming cynical about the possibility of reliable sentences in capital cases, I see the Court becoming more idealistic. I suggest that this idealism reflects the Court’s assumption that the judges and jurors responsible for making final judgments in capital cases make reliable decisions. When the Court makes such an assumption, it has to assume the conditions that make reliable decisions possible. In other words, it still has the idea of reliability, and from that fact, it may suppose something that is the ground of this idea. Then, on this ground, the Court may justify its assumption that sentencing decisions in capital cases are fair and accurate. The ground it assumes is common sense.

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In Justification and Application, Habermas elaborates on what the assumption of common sense entails. According to Habermas, valid statements must admit of justification.31 This means that they must be able to provide reasons to warrant their claim to validity. Of course, Habermas does not believe these reasons can take the form of an appeal to some “real” or ontological concept of the truth. Rather, he argues that valid statements must admit of justification by appeal to reasons that are stated with the presumption that they can convince anyone, anywhere, at any time. Valid statements are, therefore, valid to the extent that they are, by definition, prepared to engage in practical discourse with an unlimited communication community. Habermas proposes the idea of an unlimited communication community as an alternative to the (Kantian) idea of the lone will willing universal laws for itself (and, by virtue of their participation in reason, for all rational beings as well).32 According to Habermas, an unlimited communication community retains a public, almost social character as it entails the notion of “ideal role taking.” Ideal role taking means that when one engages in practical discourse, one is (ideally) compelled to adopt the perspective of everyone else, in order to test the acceptability of a particular regulation or claim from the perspective of every other person’s understanding.33 On the basis of this presupposed (rather than actually performed) role play, one’s claims are, as Kant says, fortified, and their validity is assured by a ground common to all. I suggest that the Supreme Court’s assumption of common sense as the ground of reliable sentencing decisions is obvious, but also easily overlooked, when the Court allows states to use metaphors in their sentencing statutes. A metaphor is a figure of speech in which the literal meaning of a word or phrase is changed to one not properly applicable but analogous to it.34 In brief, one word or concept is substituted for another. The reason for this substitution is, typically, that the intended meaning is vague or inexpressible, and no single word or concept exists to which it corresponds. To communicate this meaning, a familiar word or concept, often drawn from daily experience, is employed. This word or concept may be commonplace, but it nevertheless requires common sense in order to be understood.35 First, common sense is required for the metaphor to be recognized as such. To understand what Nietzsche says when he refers to “the same old sun” in the preceding quotation, for example, one must recognize that he is not referring to the celestial body around which Earth rotates but rather

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to the more ineffable concept of essence, truth, or being around which Western philosophy has turned for a long time. Second, common sense is required to draw the implicit comparison between the two words or concepts invoked, so that the value of using one in the place of the other can be realized. Again, in the example from Nietzsche, the sun is a source of illumination whose power of enlightenment philosophers have often sought to harness for their own murky projects. Complicated as the interpretation of metaphors may sound, there are no clear rules for interpreting them; we just do it. What is more, we do it with confidence that we have grasped a meaning to which other readers would give their assent. We do not explicitly test the acceptability of our reading, but we are sure that it is meaningful from others’ perspectives. While we cannot refer to a common dictionary definition to settle once and for all what that meaning is, we can and do state it with the assurance of a Kantian art critic. For the recognition and interpretation of metaphors is very like Kant’s aesthetic judgment: though the interpretation of metaphors does not depend on clear rules or dictionary definitions, we nevertheless use metaphors with certainty that our meaning can be comprehended by all other rational beings. In doing so, we assume an interpretative skill that functions as a “ground common to all”—common sense. A familiar metaphor in the context of capital punishment jurisprudence is the metaphor of weighing, in which the act of determining the heaviness of something is substituted for the act of deliberation. In the United States, this metaphor is commonly used in sentencing statutes to explain how the sentencing decision in a capital case is to be made. Occasionally, the language has been challenged as too restrictive, but courts throughout the country have defended it by calling attention to the fact that “weighing” in these statutes is a metaphor. For example, in State v. Wood (1982), the Supreme Court of Utah explains that when the language of weighing is used in the context of a penalty hearing, “that term is akin to a metaphor which is not altogether descriptive of the mental process involved.”36 Consequently, the appropriate standard to be used by the sentencing authority in a capital case requires that “the sentencing body compare the totality of the mitigating against the totality of the aggravating factors, not in terms of the relative numbers of the aggravating and the mitigating factors, but in terms of their respective substantiality and

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persuasiveness.”37 Similarly, in People v. Brown (1983), the Supreme Court of California explains: [T]he reference to “weighing” . . . in the 1978 law need not be interpreted to limit impermissibly the scope of the jury’s ultimate discretion. In this context, the word “weighing” is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary “scale,” or the arbitrary assignment of “weights” to any of them.38

In these cases, the language of weighing is defended on the grounds that it is employed because it is necessary to describe a process that cannot otherwise be easily put into words. At the same time, the courts claim that the metaphor has no determinate effect on the exercise of the sentencing authority’s discretion; it does not alter its freedom to evaluate the factors it is permitted to consider, and the language does not require that the sentencing authority decide to sentence the defendant to death unless the conclusion is reached that death is appropriate. When the courts say both of these things at once, they indicate that the metaphor is effective at regulating sentencing decisions in capital cases because judges and jurors recognize it for what it is: an account of a process that cannot be easily described but whose most important features are called to our attention in a comparison with some (but not all) of the features of a procedure more easily represented. There are two obvious questions: How can the courts rely so heavily upon metaphor—an artistic literary device, after all—in the regulation of a life and death decision? And how do they do so with such easy confidence that everyone will know what these metaphors mean? Weisberg, among others, argues that the courts are simply disingenuous. That is to say, the courts do not actually believe that these metaphors do anything other than veil the fact that sentencing decisions are, once more, purely discretionary. But if we take the courts’ statements about metaphor seriously, another explanation suggests itself. The courts want to continue regulating sentencing decisions in capital cases, but they do not want to lay down rules that might restrict the discretion of judges and jurors too narrowly. To achieve this goal, they appeal to the common sense of judges and jurors, the “ground common to all” that enables the sentencing authority to accurately interpret a familiar metaphor in an unfamiliar context and be

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guided by that metaphor in its decision making. Thus, the ability of judges and jurors to interpret metaphors reliably is itself a warrant of the common sense that the courts rely on to regulate judges and jurors in making reliable sentencing decisions in capital cases.

III. Common Sense in Practice As we have seen, Weisberg claims that the regulation of capital punishment really only serves to reassure people that the sanctions they inflict in capital cases follow from the demands of neutral, disinterested legal principles.39 According to Weisberg, it is better to be honest that regulation does little more than comfort people than to pretend that the language with which the death penalty has been “rationalized” actually affects the reliability of sentencing decisions. However, in making this argument, Weisberg overlooks the way in which the language of regulation, and in particular, metaphors, presuppose a community of reason. In making this claim, I do not mean to make the legal realist’s point, that what really restricts legal professionals in the interpretation and application of the law is their informal, social education in practices of rule following.40 Rather, I mean to suggest that the Supreme Court deregulates with the assumption that judges and jurors are able to “transcend” their actual circumstances and appeal to common sense, so that when they impose sentences they may make claims that are neither empirically verifiable nor logically determined but that are, nevertheless, universally valid. To demonstrate my argument that the Court presupposes a community of reason so that, when it retreats from its post-Furman position of regulation, the reliability of sentences in death penalty cases is not threatened, I turn to one of the cases that Weisberg identifies as deregulating death. The case is Zant v. Stephens. The issue before the Supreme Court in Zant is whether the improper consideration of an aggravating circumstance during the sentencing phase of a capital trial may be considered a “harmless error.” In a bifurcated trial in a Georgia state court, Alpha Otis O’Daniel Stephens was found guilty of murder and sentenced to death. As instructed by the original judge in the case, the jury indicated that it had considered the presence of three statutory aggravating circumstances in arriving at its sentencing decision. The case came before the Supreme Court

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because one of those circumstances was later ruled unconstitutionally vague. On appeal Stephens argued that his sentence should be invalidated because the reviewing court could not ascertain how much the jury relied on this particular circumstance in its sentencing decision. While an appeals court eventually agreed, the Supreme Court does not. The Court finds that, because of the structure of the capital sentencing scheme in Georgia, the constitutional error in this case in no way affected the sentencing outcome. According to the Georgia State Court (on whose account the Supreme Court relies in Zant), statutory aggravating circumstances are invoked in Georgia only to narrow the class of first-degree murderers who are eligible for the death penalty. As the jury at Stephens’s original trial had indicated the presence of two constitutionally sound statutory aggravating circumstances in addition to the third that was later found to be unconstitutionally vague, the Court determines that Stephens would have been found death eligible even if the jury had not indicated the presence of the third aggravating circumstance. As I mentioned above, according to Weisberg, in the immediate period following the Court’s ruling in Gregg v. Georgia all aspects of the penalty phase—from regulations about the conduct of the prosecution and the defense to rules of evidence and the judge’s instructions to the jury— are modeled on the regulations and traditions proper to the guilt phase. This modeling is metaphoric in the sense that the penalty phase is represented in terms of the (more familiar) guilt phase and then understood in those terms. Consequently, during the penalty phase of a capital trial, the defendant is perceived to enjoy certain constitutional protections—against double jeopardy, for example. In addition, sentences are perceived to be the equivalent of verdicts. Of course, when the jury decides that the defendant is guilty, there is an external standard of validity against which the decision can be evaluated. When the jury decides to sentence the defendant to death, no such standard exists. Weisberg claims that when this difference between the guilt phase and the penalty phase of a capital trial is acknowledged, the metaphor breaks down, and the illusion that the sentencing decision in a capital trial is contained by a legal rule is destroyed. According to Weisberg, the failure of the metaphor is acknowledged in Justice William Rehnquist’s concur-

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ring opinion in Zant v. Stephens. Weisberg observes that, in his opinion, Rehnquist repeatedly emphasizes the “countless facts and circumstances” on which a jury rests a penalty decision. Weisberg says that by calling attention to the ostensibly infinite number of factors involved in a penalty decision, Rehnquist effectively establishes that “the penalty judgment [is] an ineffable, subjective decision to which all quixotic due process ideals and all formal ‘modeling’ are irrelevant.”41 In other words, unlike the guilt judgment in a capital trial, the penalty judgment cannot be evaluated in terms of objective, external standards. The penalty decision is too complex and idiosyncratic. When it becomes apparent that the penalty phase and the guilt phase differ in this important respect, Weisberg says, the metaphor of the trial is revealed as misleading and the Court may no longer pretend to regulate one phase in terms that apply to the other. I too am struck by the number of times Rehnquist refers to the innumerable aspects of a sentencing decision. As Weisberg notes, Rehnquist repeatedly claims that the penalty decision rests upon “countless subjects,” “countless considerations,” “countless factors,” “countless facts and circumstances,” and “countless variables.” Given the number of factors involved, it would seem impossible to discern how much weight the jury assigned to any particular circumstance, let alone to an aggravating circumstance that was later determined to be unconstitutionally vague. However, this is not Rehnquist’s conclusion. Rather, Rehnquist assumes that not only can he review the case, but he can determine that it was justly decided. Presuming that the jury had common sense, Rehnquist is able to dismiss the inference that the invalidation of a single aggravating circumstance would change the outcome of the jury’s deliberations. For common sense would conclude that a single circumstance is insignificant in relation to the “countless” other factors anyone—everyone—has to take into account when deciding on a sentence. Numerically speaking, in relation to the sheer amount of information a jury considers in its penalty deliberations, any single fact or circumstance is relatively unimportant. In Rehnquist’s words, “When an aggravating circumstance proves invalid, . . . the effect ordinarily is only to diminish the probative value of one of literally countless factors that the jury considered. The inference that this diminution would alter the result reached by the jury is all but nonexistent.”42

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Rehnquist takes this kind of approach for granted and makes it his own. That is to say, he bases his assumption on common experience—he notes that the effect “ordinarily” registered in cases when an aggravating circumstance proves invalid is negligible—and on logic—he belittles the “inference” that the absence of one piece of evidence would alter the result. In an article critical of the Supreme Court’s reliance on metaphors in its death penalty jurisprudence, Marcia Widder unwittingly supports my contention that the Supreme Court may withdraw from direct involvement in the regulation of sentencing decisions without concern for the reliability of death sentences.43 In another reading of Zant v. Stephens, Widder argues that the Court’s ruling is based on the assumption that the process by which death sentences are imposed in “weighing” states is significantly different from the process by which death sentences are imposed in “nonweighing” states. According to Widder, in Zant, the Supreme Court assumes that aggravating circumstances do not actually guide the sentencing authority in the exercise of its discretion in nonweighing states the way they do in weighing states. Widder claims that this is apparent when the Court says that, in nonweighing states like Georgia, the finding of an aggravating circumstance only narrows the class of persons convicted of murder who are eligible for the death penalty. As the defendant, Stephens, would have been found eligible for the death penalty by virtue of the two legitimate aggravating circumstances indicated by the jury, the Court finds that the fact that the jury also indicated the presence of a third aggravating circumstance had no bearing on the outcome of the case. In sum, Widder argues that in a nonweighing state aggravating circumstances are not so much considered as counted. In a weighing state, the Court would not have been able to dismiss the improper consideration of an aggravating circumstance because the process of judgment captured by the metaphor of weighing is fundamentally different from the procedure represented by the Court in Zant. While Widder herself concludes that metaphors in legal statutes are pernicious because they can be mistaken for actual descriptions of abstract concepts and processes, what she observes is that metaphors do indeed change the way in which judges and jurors understand and undertake judgment in capital cases. She testifies, then, to the efficacy of metaphors, and of the common sense that interprets them, in regulating the “deregulated” death sentencing decision.

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IV. Common Sense in Crisis: McCleskey v. Kemp We see that the Court assumes there is a communication community that ultimately validates sentencing decisions. This community does not actually exist, of course, but it is a real presupposition of a reliable capital punishment system. However, at a certain moment, social scientific evidence of racial bias threatens the assumption of this community. The premise of the communication community is that every member of the community is different but is compelled to adopt the perspective of everyone else. This exchange of perspectives assures the validity of statements. But social scientific evidence of racial bias calls into question the reality of this exchange. It does so by indicating that actual jurors do not transcend their own perspectives; the language of sentencing statutes fails to project them into a perfect, impartial public forum. The Supreme Court obviously depends on the reality of Habermas’s communication community when it confronts the failure of the reliability of the capital punishment system in the arguments presented by the petitioner in McCleskey v. Kemp. Warren McCleskey, a black man convicted of killing a white police officer during a robbery, was sentenced to death in Georgia. On appeal, McCleskey argued that the Georgia death sentencing process is unconstitutional. Drawing on a sophisticated statistical study (known as the Baldus study) showing a disparity in the imposition of death sentences in Georgia based on the murder victim’s race and, to a lesser extent, on the race of the offender, McCleskey claimed that the Georgia death sentencing process violated both the Fourteenth and the Eighth Amendments.44 The Supreme Court disagrees. Although it assumes the validity of the Baldus study, the majority finds that McCleskey failed to demonstrate that racial considerations played any part in the sentencing process of his particular trial. In response to the charge that the sentencing process in Georgia was arbitrary and capricious in application, the Court reaffirms its commitment to the value of discretion in death sentencing and says that McCleskey could not prove that his death sentence was disproportionate to other death sentences imposed in the state. The Court’s response to the Baldus study reveals its assumptions about the sentencing authority in capital cases. Consider, for example, the majority rebuttal of McCleskey’s argument that the Georgia capital punishment system violates the Equal Protection Clause. Writing for the majority,

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Justice Lewis Powell first dismisses any grounds for the argument that McCleskey was discriminated against because of the race of his victim. According to Powell, McCleskey may claim that he suffered discrimination on the basis of his own race only. Moreover, Powell finds that McCleskey fails to prove that he was personally discriminated against during the sentencing phase of his capital trial. According to Powell, the Baldus study does not present evidence of purposeful discrimination in McCleskey’s particular case; the statistics may well be correct, but they do not substantiate McCleskey’s claim that the outcome of his case was influenced by racial bias. When provided with evidence that procedural safeguards in death penalty cases do not prevent racial bias from affecting the outcome of these cases, the Court continues to act as if these safeguards were nevertheless sufficient to prevent racial bias from affecting the outcome of the particular case before it. Specifically, despite evidence to the contrary, the Court continues to assume that bias affects the outcome of a capital trial only when the sentencing procedure breaks down or fails in some way, a breakdown that McCleskey does not demonstrate as having happened in his particular case.45 However, the claim that McCleskey raises is not that the death penalty system breaks down at any particular moment but, rather, that the system never worked in the first place. Indeed, he challenges a basic assumption of the post-Furman capital punishment system—the assumption of a communication community that guarantees the legitimacy of the sentences juries and judges impose in capital cases. The statistical presence of racial bias implies that the sentences being pronounced in capital cases cannot presume the kind of engagement in practical discourse of which Habermas speaks, the practical discourse that requires one to take on the perspective of everyone else to test the acceptability of a particular claim. Likewise, statistical evidence of racial bias indicates that the sentences imposed—and claiming the assent of all rational beings— may not be presumed to rest on the ground common to all of common sense. Powell’s opinion is remarkable for its adherence to the assumption that an ideal community authorizes the death penalty despite statistical evidence to the contrary. Nevertheless, he betrays his own anxiety about this assumption when he offers a different, ostensibly more pragmatic, reason for his opinion in McCleskey.46 Powell says that if the Court were to over-

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turn McCleskey’s death sentence on the basis of the evidence before it, the entire criminal justice system would soon be overwhelmed by people appealing their sentences on the basis of similar evidence. Powell claims that, once the Court acknowledges that it has not been able to establish a capital punishment system in which sentencing decisions are completely rational, sentencing decisions in other areas of criminal justice would be susceptible to the charge that they are irrational too. This argument undermines Powell’s earlier one, that McCleskey fails to prove discrimination in this case, for it suggests that Powell denies the validity of McCleskey’s claims in part because of the threat their premises would pose to the entire criminal justice system. Clearly, the majority assumes that other defendants will be able to demonstrate discrimination in other kinds of sentencing decisions, for there is no other reason to believe that the criminal justice system would be swamped with appeals should the Court find for McCleskey. Because of the consequences for the criminal justice system, Powell seems to admit, the Court refuses to act on McCleskey’s case. Such an admission would seem to imply that the legal system has never been and may never be capable of rationalizing the sentencing process. However, the dissent offers a different interpretation of the majority opinion. According to the dissent, the Court does not indicate that the capital punishment system may never be effectively regulated but only that specific attempts to regulate it so far have failed to prevent racial bias from influencing sentencing decisions. Indeed, according to the dissent, the majority exaggerates the “apocalyptic consequences” of recognizing the validity of McCleskey’s claim in order to justify the fact that it can’t be bothered to look for remedies to the ills identified by the Baldus study.47 In his dissenting opinion, for example, Justice William Brennan reminds the Court that the level of rationality considered satisfactory in a death penalty sentencing is “uniquely high,” which means that the arguments that McCleskey made in his appeal will not translate well to other contexts of criminal law.48 What is more, Brennan notes, the majority fails to appreciate the sophistication of the Baldus study and the infrequency with which such studies are conducted. Should the Court accept the Baldus study as evidence, Brennan claims, it would set a new standard for statistical evidence that other studies would rarely be able to meet.49 Justices Harry Blackmun and John Paul Stevens explicitly suggest in their dissenting opinions that the Baldus study does not preclude the

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possibility of further rationalization of the capital punishment system.50 Blackmun observes that a whole area of the capital punishment system having to do with the prosecution of capital cases has not yet been regulated at all.51 Stevens, on the other hand, suggests that Georgia might restructure its capital punishment system to take advantage of the fact that there are, according to the Baldus study, categories of crime for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. With great optimism, Stevens claims, “If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated.”52 Stevens’s interpretation of the Baldus study in McCleskey v. Kemp reveals that the majority is not alone in its stubborn attachment to the assumptions on which the rational character of the post-Furman death penalty system is predicated. However, Stevens’s optimism rings as false as Powell’s pragmatism. In effect, Stevens takes two different positions at once: he argues that the evidence of discrimination that the Baldus study presents to the Court calls for a serious reappraisal of the capital punishment system in the United States, and yet, at the same time, he refuses to take this evidence seriously enough to consider how it might throw into question the premises on which the capital punishment system has been based. All the justices in the minority admit the validity of the Baldus study but struggle to contain the disruptive force of its results and to stave off the possibility that judgment may not be justified by something “real.”53 In their vaguely contradictory positions, both the majority and the minority in McCleskey register that the Baldus study casts doubt upon the validity of their shared assumption that judges and jurors (and prosecutors for that matter) are members of a universal communication community who may be presupposed to share the ground on which universally valid claims rely: common sense. When confronted with evidence of racial bias in death penalty sentencing decisions, both the majority and the minority want to be able to continue acting as if this communication community will neutralize any nefarious influences and will nurture an intuitive understanding of what is “appropriate” for the community as a whole, so that sentencing decisions are always proportionate in their severity to the severity of the crimes for which they are imposed.54

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Evidence of racial disparities in the distribution of death sentences obliges the Supreme Court to reconsider the assumption of the reliability of the death sentences imposed by the post-Furman system. Rather than consider the possibility that this assumption is questionable, however, many legal scholars and social scientists interested in law and society have preferred to concentrate on proving the claim implied in Blackmun’s dissenting opinion, that if the process leading up to a capital trial were differently regulated, the sentencing decisions in capital trials would no longer reflect racial bias. In his McCleskey opinion, Blackmun calls for the establishment of guidelines for assistant district attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case, in hopes that such regulation will provide a measure of consistency that is missing in the present capital punishment system.55 Ironically, the process of regulation may itself contribute to the racial disparities Blackmun would like to see disappear.56 In his work on the regulation of juries in capital trials, Gregory Russell suggests that regulation in this context is premised on five questionable assumptions. For example, juries are assumed to be able to understand and follow instructions.57 During the process of voir dire, potential jurors are asked if they can put aside their personal opinions and beliefs so that they may approach the facts of the case before them with an open mind. Russell remarks, “[T]he Court assumes that juries chosen in death penalty cases are more or less blank slates upon which the trial judge merely paints statutorily defined instructions which will guide a jury’s deliberations. Previously painted sets of social instructions, socialized experiences, and impressions, and systematic views about the world, are deemphasized as possible contributing variables in a jury’s deliberative process.”58 The Court need not assume that juries are “blank,” but it must take for granted that they are essentially interchangeable once they engage in the deliberating process. Nevertheless, juries are, one way or another, stripped of the opinions they wear in society on the assumption that this naked state is most universal, rational, and honest. Of course, juries in capital trials are supposed to be impartial, and the process of voir dire is designed to make sure of that. People who are not “blank” are excluded from juries because they will not follow instructions. As Russell says, “it [is] the legal duty of jurors to follow instructions. . . . The inability to follow guidance in death sentence application obviate[s]

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the whole point of instructions. Hence, those who [can] not be guided [are] eliminated.”59 As a result, people who say that they would never vote for a death sentence or who say that their ability to judge guilt would be compromised by their opposition to the death penalty may not serve as jurors in capital trials. According to the capital punishment system, their opinions about the death penalty render them impossible to guide. This aspect of the system is often critically remarked, for it would seem people who think that the death penalty is a perfectly acceptable form of punishment are not considered to be biased but, rather, are perceived to be “objective” because their opinions do not compromise their ability to follow the court’s instructions. While it makes sense that a juror in a capital trial must be able to apply the law, the irony of the fact that an opinion in favor of the death penalty does not legally count as an opinion at all raises a serious question: how does one distinguish a “blank” slate from its opposite? Clearly, jurors come equipped to the task of judgment with personal opinions and beliefs. As we have seen, the system almost demands that they do, insofar as it is impossible to serve on a jury in a capital case without expressing some kind of support for capital punishment. What is more, as Russell shows, attitudes associated with racial bias are strongly predictive of support for the death penalty.60 At the same time, how would it be possible for a person to serve on the jury of a capital trial and not have an opinion at all? With what resources would such a person deliberate? Russell suggests a possible answer. According to Russell, jurors who have little sense of what the court is telling them and of how the court is telling them to make their decisions draw heavily upon their community background as a frame of reference. Insofar as juries are supposed to express a sense of the community, the Court has no objection to this practice. On the other hand, Russell notes, as a frame of reference, community background may be a source of bias.61 This is the legal realist position, from which I distanced the Court earlier. As Habermas conceives of an unlimited communication community, this frame of reference does not interfere with the exchange or interchange of perspectives. Indeed, the differences among the members of the communication community sustain it as a critical enterprise, so that claims to validity (validity established always for a particular us) are indeed worthy of our agreement. In McCleskey v. Kemp, Powell seems to embrace this con-

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ception. Citing Justice Thurgood Marshall’s opinion in Peters v. Kiff (1972), Powell observes that “Individual jurors bring to their deliberations ‘qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.’ ”62 What is more, Powell says, “the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”63 Yet in McCleskey the Court confronts hard evidence of a frightening possibility: juries are the conscience of the actual community, not the ideal one. Or at least, the sentencing statutes found constitutional by the Court after Furman do not have the power to project us into the ideal community that could ultimately authorize death penalty decisions. This may not sound like a particularly startling revelation. Nevertheless, it is sufficiently unsettling that, despite his desire for the Court to admit that judgment in death penalty cases is “an existential moment of moral perception, neither right nor wrong, and therefore largely unreviewable,” Weisberg draws up short before making it.64 Instead, he endorses the view that he attributes to both Bernard Williams and Robert Nozick, that judgment is an art, one for which we all (presumably) have a degree of talent, for it is one with which “we can achieve a reasonable amount of harmony and consistency in the course of our moral choices, so that at least in retrospect we can say we have acted in some sense ‘reasonably.’”65 Marking another shift in the metaphysics of death penalty jurisprudence in the United States, evidence of racial bias in the capital punishment system calls into question the assumption of such a capacity for “art.” While people may well be “artistic” in the sense that Weisberg suggests, the Court can no longer ignore the fact that such a talent cannot be distinguished from its other. At the risk of laboring the metaphor, consider what Louis Menand has observed about the contemporary world of art: “it is no longer possible . . . to distinguish something that is a work of art from something that is not.”66 After McCleskey, the Court no longer has the luxury of believing in what it cannot see.

4 The Cockcrow of Positivism: “Normal” Culpability in Capital Punishment Jurisprudence 4. The real world—unattainable? Unattained, at any rate. And if unattained also unknown. Consequently also no consolation, no redemption, no duty: how could we have a duty towards something unknown? (The grey of dawn. First yawnings of reason. Cockcrow of positivism.) —Friedrich Nietzsche, Twilight of the Idols

In the last chapter, I argued that the Supreme Court validates death penalty decisions by assuming a communication community that it cannot substantiate but that it must assume is the case if the death penalty is ever to be determined to be appropriate. I also pointed out that the Court’s faith in this community is tested by empirical work that challenges the rationality of believing in what cannot be seen (and actually appears otherwise). Here, I analyze the Supreme Court’s ruling in Tison v. Arizona (1987) and show how the Court validates death penalty decisions with reference to grounds other than assumptions of universal reason or common sense.1 Specifically, I demonstrate how the Court embraces a manner of validating sentencing outcomes that is based less on reason than on norms of behavior and standard practices. This is evident in the culpable mental state the Court articulates for the first time in Tison. Although they seem incredible, the facts of Tison are not in dispute. In 1978, carrying out a plan devised by their mother and other members of

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their family, Ricky, Raymond, and Donald Tison walked into the Arizona State Prison with an ice chest full of guns and, without firing a shot, managed to break out their father, Gary Tison, and his cellmate, Randy Greenawalt. The plan went smoothly until some days later, when the group’s getaway car was rendered useless by a flat tire. Improvising, the men decided to steal another car and flagged down a passing motorist. John Lyons, his wife, Donnelda, their two-year-old son, Christopher, and Lyons’s fifteen-year-old niece, Theresa Tyson, stopped when they saw Raymond Tison waving. The family were immediately dragged from their vehicle and put in the car with the flat tire. In this car, they were driven out into the desert where Gary Tison and Greenawalt shot them. Tison’s sons were surprised by the killings—they had been fetching water for their captives when the shooting began—but nevertheless made no attempt to get away from their father and Greenawalt and did not turn them in to the police. Not long after the shooting, however, the group ran into a roadblock, and a shootout with the police ensued. Donald Tison was killed, and Gary Tison escaped into the desert where he died of exposure. Ricky and Raymond Tison were captured with Greenawalt. Tried individually for capital murder and a variety of other offenses under Arizona accomplice liability and felony murder statutes, all three were convicted of the murders, and a judge sentenced them to death. However, after the Supreme Court ruled in Enmund v. Florida (1982) that persons cannot be sentenced to death unless they have been proved beyond a reasonable doubt to have committed or intended to commit murder, Ricky and Raymond Tison appealed their sentences.2 In its ruling on this appeal, the Supreme Court recognizes that neither Ricky nor Raymond Tison intended to kill the victims, nor did they inflict the fatal wounds.3 However, rather than commute their sentences to life in prison, the Court remands the case after articulating a new culpable mental state that may be used to support a capital sentencing judgment. This new culpable mental state is “reckless indifference to human life.”4 When accompanied by major participation in a felony murder, the Court says that this mental state is so heinous as to warrant punishment with death. While in many ways this culpable mental state is not original, the Court’s decision to emphasize reckless indifference in its articulation of this new culpable mental state permits lower courts, when they are seeking to establish the criminality of the defendant’s state of mind, to shift the focus

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of the inquiry from his (unobservable) state of belief to his (observable) conduct. Thus, when confronted with the claim that the defendant did not intend to commit the crime of which he has been convicted, judges or juries are not obliged to ask themselves in a purely speculative manner, “Nevertheless, should he have known better?” Instead, they may interpret the normative force of the question as directing them to consider how a normal person would have behaved in circumstances similar to the defendant’s. I argue that the Court’s decision to emphasize the aspect of recklessness in a culpable mental state reflects its renewed appreciation for the fact that it is difficult, if not impossible, to know someone’s intentions. I also argue that this decision indicates support for the view that “positive” knowledge—knowledge based on observable phenomena and empirically verifiable scientific facts and laws—is better able to validate final decisions in a pluralist society than any real-world ideas about ultimate causes. In brief, I argue that when the Court decides that people may be eligible to be executed for capital crimes they neither committed nor intended to commit, the Court heeds the “cockcrow of positivism” that Nietzsche locates at the fourth stage of his history of metaphysics and begins to look for grounds in the “actual world” for the claims we make of and for each other. In the first section of the chapter, I go over the facts of Tison v. Arizona. In the second section of the chapter, I consider more closely the new culpable mental state articulated by the Court. Significantly, the Court demonstrates little interest in a psychological account of the Tisons’ actions. Given the circumstances of the crimes Ricky and Raymond Tison admit to intending to commit and the kinds of questions with which their actions confront the Court, such an account would seem relevant.5 I suggest that the Court rejects this line of thinking for many reasons, but I focus on one reason in particular having to do with the kind of subject imagined at law. This subject has free will that is reflected in her behavior. That is to say, her behavior is not determined by influences—known or unknown—over which she has no control, and therefore no obscure ideal or all-powerful figure may mitigate her responsibility for the things she does. She must abide by the same rules as everyone else, the rules that impose duties by virtue of their status as social norms, or pay the consequences. In sum, I suggest the Court rejects any psychological account of

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the Tisons’ behavior because the Court subscribes to a positivist conception of law. Of course, such a conception of law does not preclude the possibility of recognizing legal excuses. In the third section of the chapter, I draw on the work of the legal positivist H. L. A. Hart on punishment and responsibility to elaborate on the new culpable mental state the Supreme Court articulates in Tison v. Arizona. This elaboration helps show how the Court may conceive of criminal responsibility as naturally (though also not inevitably) a matter of actual facts rather than real ideals.

I. Tison v. Arizona One of the aspects of Tison v. Arizona that makes it noteworthy is the fact that it need never have been noteworthy at all. The particulars of the Tison case are such that the Court could easily have decided to settle the issue in terms of either one of two existing felony murder categories. “Felony murder” refers to the legal doctrine derived from a common law rule that one whose conduct brings about a death in the commission or the attempted commission of a felony is guilty of murder. This doctrine is controversial, as it entitles a court to sentence a defendant to death for a homicide he or she may have had no intention of committing. Revisiting this controversy in Enmund, the Court determined that while a defendant who has participated in a felony murder is blameworthy, capital punishment is disproportionate in cases where the defendant is a “minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.”6 In cases where the defendant is a felony murderer who actually killed, attempted to kill, or intended to kill, however, the Enmund Court found nothing wrong with capital punishment.7 When it decided Tison v. Arizona, the Court could have based a decision to uphold the Tisons’ death sentences on felony murder doctrine untouched by Enmund. As the Court itself describes the crime for which the Tisons were sentenced to death, it began at the Arizona State Prison where both Ricky and Raymond Tison admitted they had been willing to take lives to defend themselves. Both brothers brought guns into the prison and armed killers. In addition, they stole a car and entrusted the

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lives of the car’s occupants to those killers. When their father shot these people, they failed to intervene. What is more, they continued to help their father and his cellmate run from the law until they were caught. Alternatively, the Court could have availed itself of the felony murder category articulated in Enmund. To do so, the Court had only to describe the Tisons’ crime in terms of the immediate circumstances surrounding the shooting of the members of the Lyons family. To show that Ricky and Raymond Tison never intended to kill the family and had no culpable state of mind, the Court could have emphasized the fact that when Gary Tison and Greenawalt opened fire on the Lyons family, Tison’s sons were fetching water for their captives so they would not die of thirst in the desert while they waited to be rescued. The Court could also have noted that Gary Tison had already taken the precaution of disabling the car so that the Lyonses would not be able to drive away after he and his sons left. The obvious conclusion to draw from these facts is that Gary Tison intended to leave the Lyons family alive in the desert—indeed, this is precisely the conclusion that his sons claimed to have drawn. Thus, in addition to the fact that Ricky and Raymond Tison did not intend to harm the Lyonses, the Court could have argued that under the circumstances they had no reason to believe that their captives would be harmed by anyone else. Yet the Court claims that Tison v. Arizona doesn’t fit either category of felony murder. The Supreme Court takes seriously the defendants’ lack of intention in committing the crime, but at the same time it considers the defendants’ participation in the murders “substantial.” As a result the Court faces a profound challenge: it must articulate the grounds on which punishment is appropriate for people who never proposed to do the harm of which they have been found guilty and who did not anticipate the harmful consequences of the actions that they actually took. Traditionally, to be held at fault a criminal has to be found to have exercised his free will in choosing to commit a crime.8 As Sir William Blackstone explains in Commentaries on the Laws of England, only the concurrence of the will renders human actions worthy of praise or blame. This is because only human actions that are informed by will may reflect or express something in addition to or other than what is accomplished by the act itself, something calling for moral consideration.9 Unfortunately, the quality of a person’s will can be examined only after he has expressed that will in deed. Therefore, “to constitute a crime against human laws, there

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must be, first, a vicious will, and, secondly, an unlawful act consequent upon such vicious will.”10 Given this understanding of the grounds of fault, a criminal act alone is insufficient to establish the commission of a crime. In Blackstone’s words, “an involuntary act as it has no claim to merit, so neither can it induce any guilt.”11 A logic of punishment predicated on a vicious will is generally reflected in U.S. criminal law. In the United States, to find someone guilty of committing a crime the state must establish that the person committed a “guilty act” or wrongful deed (actus reus) with criminal intent or a “guilty mind” (mens rea). Consequently, defendants may argue that they did not commit a crime even when it is established that they did commit a “wrongful deed.” In such cases, defendants excuse themselves: they argue that their “guilty act” was not accompanied by the requisite “guilty mind.” As an excuse, they might claim that they did not know what they were doing at the time, or they might show that they knew what they were doing but that they were powerless to stop themselves.12 Thus, for example, a defendant might argue that, although she shot someone, she was being held at gunpoint by a third party, and if she had not pulled the trigger she would have been killed herself. As she did not will the murder she committed, she is not responsible for committing it. And indeed, in such a case the person who ordered the defendant to shoot is legally the guilty party, not the person who actually pulled the trigger. Even when persons are found to have possessed the will to commit a crime, however, it is still possible to argue that they were not in full possession of their faculties at the time of the criminal act. What this means is that criminal intent may be a factor not only in the determination that a particular person committed a particular crime but also in the decision about the punishment that a person deserves for having committed the crime of which they have been found guilty. The law recognizes that at the moment of the crime, the defendant may have confronted some external conditions or internal limitations that made it particularly difficult for him to control himself.13 Should there be any evidence of such “mitigating circumstances,” the defendant is still held legally responsible for the crime but is not necessarily punished as severely as the law allows. In principle, then, if someone can show during the penalty phase of her capital trial a compromised capacity to intend, then she should not be punished as severely as a normal person.

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Although in its ruling on the case the Supreme Court does not officially address the question of whether Ricky and Raymond Tison are normal, the Court indicates in a number of ways that it assumes the Tisons to be perfectly rational and self-possessed, at least until the time of the prison break. More importantly, the Court fails to identify any excuses or mitigating circumstances before or after the prison break that would provide a “good reason for administering a less severe penalty” than death in this case. To conclude that the Tisons are normal leaves the Court in a quandary, however. First, how can it account for the fact that the Tisons participated in crimes apparently beyond the pale of normality?14 Second, how can the Court justify punishing such perpetrators with death when, as Justice Sandra Day O’Connor herself writes in the majority opinion, “Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and therefore, the more severely it ought to be punished”?15 Legal tradition reserves death for criminals whose offenses are the result of the most purposeful conduct. The Court resolves this quandary by holding that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.16 The Court explains “The reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.”17 This explanation requires some interpretation if we are not to conclude that the Court has simply abandoned the practice of distinguishing between a guilty act and a guilty mind. For the Court seems to be saying that, when a person engages in criminal activities that carry a grave risk of death, she necessarily has a reckless disregard for human life. Therefore, when a person engages in such activities, there is no need for separate proof or argument of her state of mind. Actus reus and mens rea appear to be no longer distinct elements of a crime. Indeed, mindful of the possibility that one might draw this conclusion, the Court excuses itself in a footnote by saying, “Although we state [the two requirements for culpability] separately, they often overlap.”18 However, if we look more closely at the Court’s account of the new standard of capital liability it establishes in Tison v. Arizona, we see that the state of mind of the person who engages in potentially deadly criminal ac-

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tivities need not be deduced from his or her actions alone. In the passage quoted above, the Court suggests that the person facing the possibility of being sentenced to death must have “knowingly” participated in criminal activities. But the Court implies that it is not necessary to establish that the defendant herself appreciated the lethal character of the activities in which she engaged. All the Court says is that these criminal activities are “known” to carry a grave risk of death. That is to say, the Court does not claim that the criminal herself knew these activities to be risky. The criminal engaged knowingly in activities, but the Court does not find this engagement itself to be sufficient to establish a culpable state of mind; the salient fact is that these activities are known to be dangerous. Common knowledge is the standard to which the defendant is held. Because it is known that the activities engaged in by the defendant are dangerous, the defendant should have understood that her activities would almost inevitably cause the loss of human life. Of course, it is very difficult to establish as a legal fact the state of someone’s mind. Unless the defendant explicitly says something about her intentions and desires, and makes this statement in a manner that allows it to be admitted as evidence in a trial, courts usually infer mens rea from the circumstances of the crime on the basis of what a “reasonable person” would have had as a state of mind. A “reasonable person” is a legal fiction of a rational “every man.” This fiction is used at law as the standard by which we can express and enforce our expectations of other people. However, these observations suggest two things. First, there is no obvious reason for the Court to articulate a new culpable mental state in Tison v. Arizona. As I have shown, the case could have been decided in keeping with either one of two existing doctrines. Second, the new culpable mental state the Court articulates in Tison is not particularly novel. While the elements of the new culpable mental state the Court articulates in Tison may not be novel, the significance they are given is. In Tison, the Court elevates reckless indifference to a mental state that renders an act not merely a criminal offense but a capital one. The Court equates reckless indifference with the most serious kind of purposefulness, the kind that when proven in a court of law renders a defendant eligible for the most severe punishment the American criminal justice system may impose. This represents a significant shift in doctrine. As David McCord points out, historically, reckless indifference or “depraved heart” murder is seconddegree murder.19 More importantly, reckless indifference is not a doctrine

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of accomplice liability. According to McCord, reckless indifference imposes liability on a defendant for his own act and culpable mental state that result in a death.20 In other words, the defendant with a culpable mental state of reckless indifference is held responsible for actions he himself did that caused someone to die. But in Tison v. Arizona, reckless indifference is imputed to the sons who stood by while their father and his cellmate shot the victims. By elevating reckless indifference to a culpable mental state in a capital trial, the Supreme Court allows the inquiry into the defendant’s mental state to be concerned only with common assessments of the risk carried by certain criminal activities and the likelihood of those activities actually causing human death. On the basis of what (the Court implies) most people know to be the risks associated with particular activities, the Court establishes that a standard is what ought to be understood as the risks for capital liability and instructs the lower court to hold the Tisons to that standard.

II. Reasonable Legal Standards The Court’s decision to articulate this new culpable mental state is also noteworthy because another and equally sensible way to settle the issue raised in Tison v. Arizona was available. The Court could have deferred to experts in mental health. These experts could have investigated the extent to which the Tisons’ behavior was the product of forces beyond their control. Given the circumstances of the crime, this course of action would have been easy to justify. The Tisons were a very close family, so close in fact that the lines between the members of the family were blurred not only by the sons—they refused a plea bargain that would have saved their lives because they would have had to testify against their mother—but also by the Court. In his dissenting opinion, Justice William Brennan notes the Court’s failure to distinguish between Ricky and Raymond Tison and their father, remarking that “an intuition that sons and daughters must sometimes be punished for the sins of the father may be deeply rooted in our consciousness.”21 Mental health experts might also have helped the Court address the fact that the intention to kill, in the Court’s words, “is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous murderers.”22 Of course, the nonintentional murderers whom the Court

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describes as “among the most dangerous and inhumane of all” may not have wanted to kill anyone but did; the Tisons did not want to kill anyone and didn’t. Nevertheless, their major participation in the murders committed by their father and Greenawalt could have justified the Court in identifying them as “dangerous individuals” like those Michel Foucault describes in his account of the intervention of psychiatry into the field of law in the nineteenth century.23 Yet the Court does not try to understand how or why, without choosing evil of their own free will, the Tisons stood by while the Lyons family was murdered. Only Brennan in his dissent suggests that psychology plays any role in the Tisons’ behavior, and even he makes such suggestions primarily in footnotes to his opinion. There are many possible reasons for the Court’s general lack of interest in psychological arguments about criminal culpability. One reason that is often offered is that psychological arguments pose a threat to the power of law, or, rather, they challenge the legitimacy of legal authority to make certain kinds of determinations. The law permits mental health professionals to testify to signs that may be invisible to the rest of the court because judges and, more importantly, jurors, are not formally trained to recognize the signs of mental illness.24 However, expert witnesses do not simply testify that there are signs; they also interpret these signs, drawing on the latest psychological, psychiatric, and neurological research to support their interpretations.25 When the responsibility for the judgment itself weighs heavy, as in cases where the defendant may be executed if found guilty and culpable, the likelihood of jurors deferring to expert opinion is greatly increased. This tendency is exacerbated when experts speak with an authority that comes not only from experience but also from science.26 In such cases, medical rather than legal understandings of culpability may prevail. Indeed, another reason for the Court’s lack of interest in psychological arguments may be the threat these arguments pose to the person held accountable at law. Many legal scholars insist that this subject is not the same as the object studied by the sciences of the mind. The fundamental premise of criminal law is that “all persons are free agents confronted with a choice between doing right and wrong and that the person who chooses freely to do wrong is criminal.”27 By contrast, the fundamental premise of mental health science is that persons are passive, emotional types whose behavior is manipulated and possibly even determined by outside influences. Such caricatures are the legacy of behavioralism, particularly figures

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like Karl Menninger and Bernard Diamond, who argue that as the overwhelming majority of criminals in prisons are sick, prisons should be transformed into facilities that can treat sick people.28 In a 1962 essay, for instance, Diamond speculates, “It will not be a coincidence if, in the final analysis, the same humane psychological, medical, and sociological methods that are conducive to the rehabilitation of mentally ill and emotionally disordered criminals turn out to be identical with those required for supposedly normal and fully responsible offenders.”29 Claims about “disordered” and “normal” offenders may seem dated but their premises still trouble law. Deborah Denno has recently observed that a substantial number of states today have no instructions on criminal intent, and the majority of states that do have such instructions rely heavily on circumstantial evidence with little or no mention of the defendant’s mental processes that may be involved in the criminal act.30 Denno claims that the absence of instructions on criminal intent is due to the fact that the significance of mens rea has been downplayed or distorted in criminal law; she attributes this distortion to the fact that so much Model Penal Code doctrine is based on a Freudian psychoanalytic model that emphasizes unconscious rather than conscious thought processes. Being unconscious, these processes are necessarily not available for consideration. As I have already suggested, as I read Tison v. Arizona, the Court seeks objective grounds on which to base determinations of culpability in cases of terrible crimes. However, the Court is not prepared to defer to the scientists and other positivists completely. In particular, the Court is not prepared to defer to such experts as long as their work is premised on the assumption that human behavior may always be determined by influences of which the individual is not conscious and over which the individual has no control. What this means is that the Court clings to an ideal legal version of the subject while at the same time it seeks actual, positive grounds for absolute judgments. In so doing, the Court reflects and reveals the tensions in the metaphysics of the fourth stage of Nietzsche’s history. In “How the ‘Real World’ at last Became a Myth: History of an Error,” Nietzsche characterizes the fourth stage in the following way: 4. The real world—unattainable? Unattained, at any rate. And if unattained also unknown. Consequently, also no consolation, no redemption, no duty: how could we have a duty towards something unknown? (The gray of dawn. First yawnings of reason. Cockcrow of positivism.)31

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At this stage of Nietzsche’s history of metaphysics, we are not yet willing to conclude there is no such thing as the real world. At the same time, however, we are no longer willing to accept something of which we have had no experience as a source of obligation. If we have had no experience of something, if we have not achieved it or actualized it, we do not know it. And if we do not know it, it can make no claims of us. We have no relationship with it. If we don’t know something, we cannot be obliged by it or have a duty toward it. “How could we have a duty towards something unknown?” Nietzsche asks.32 Yet people continue to want “by all means that something should be firm.”33 The need for consolation, the desire for redemption, and the sense of duty have not disappeared. But, as the real world is not at hand, it cannot satisfy this need or desire; it cannot gratify this sense. What can satisfy it is what is known, and at this stage, what is known is the actual world of natural phenomena, verified by the empirical sciences. This world permits nothing more than “counting, calculating, weighing, seeing, and touching,” but on this basis, the “good” may be defined in terms of utility and social norms.34 This is the moment of Tison v. Arizona. In Tison the Supreme Court does not deny the real world outright. It resists the mental sciences and the demystification of the will, preferring to continue to subscribe to an ideal legal subject, a free agent who knows the difference between doing right and wrong and chooses what she does. However, this ideal subject is not accessible to us, and we are no longer satisfied to presume its existence. In brief, the real is unattained. Thus, to determine whether Ricky and Raymond Tison had the state of mind necessary to find them blameworthy for the murders committed by their father and his cellmate, the Supreme Court provides the lower courts with a standard of culpability that is based on what is attained, what is known. Ricky and Raymond Tison may never have intended to hurt anyone, but they may nevertheless be found to have “vicious wills” based on the fact that other people appreciated the risk of murder their circumstances presented. This argument suggests that the Supreme Court takes a legal positivist view that nothing more than social facts—reflecting longstanding tradition, old habits, or conventional wisdom—are the source or origin of our legal duties and responsibilities. It also suggests that, according to such a view, we may know what is right, or good, or just, by observing and

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abiding by what is “normal” in the actual world. That is to say, the argument suggests that what the Court does in Tison is exploit the polysemy of the word normal. The most usual sense of the word is, Georges Canguilhem tells us, “what is met with in the majority of cases of a determined kind.”35 However, as Canguilhem points out, this usual sense is ambiguous, for it designates at once a fact and a value. In its fact sense, normal is positive; that is to say, it connotes a knowledge based on actual phenomena and their properties and relations as verified by the empirical sciences. At the same time, in its value sense, normal is also always ideal. In this sense, normal connotes “a value attributed to the fact by the person speaking, by virtue of an evaluative judgment for which he takes responsibility.”36 Of course, the Court does not literally exploit the polysemy of the word normal in Tison v. Arizona. As far as I can tell, the word does not appear in the text of the Court’s opinion. What I mean to suggest, then, is that in its formulation of a new culpable mental state, the Court bases a normative claim on a norm. The Court says, in effect, that an individual may be held fully responsible for a crime she did not actually commit on the basis of the fact that others, although perhaps not the individual herself, know that the kind of thing she actually did do would probably result in a terrible crime. The Court says that what should be the case (in this case, the individual should know) is a function of what is the case (what others know to be likely).

III. Normal Excuses The defendants did not want any murders to happen, and they did not intend for any murders to happen. Nor did the defendants commit any murders. Yet several murders took place. The Court decides that the defendants may be punished with death for them. The reason they may be punished with death for them is that normal people in the same circumstances would have understood that murder was almost inevitable. How is it possible to blame people on the grounds that normal people would have understood the circumstances and anticipated the results? It may be that this practice of blame comes to us from common law.37 However, as I have already indicated, the circumstances of this case call for further elaboration of the theory. First, this is a death penalty case. Second,

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the Supreme Court chooses not only to take the case but to articulate a new culpable mental state in its opinion. This new culpable mental state exposes people to the risk of capital punishment for murders they did not intend to, and did not in fact, commit. Finally, the Court’s faith in those who participate in sentencing decisions has been shaken, if not lost, by empirical evidence of racial bias in death penalty sentencing decisions.38 As I argued in Chapter 3, the Court can no longer assume that judges and jurors have an essential sense, or capacity to cultivate a sense, of appropriateness with which to rationalize the decisions they make. On what grounds, then, can the Supreme Court claim that defendants in death penalty cases should know better than to find themselves in circumstances in which murders occur and hold them fatally responsible for those murders? I suggest that these grounds present themselves in H. L. A. Hart’s work on punishment and responsibility, for this work, in the legal positivist tradition, does not ascribe to the criminal any “real” wrong but, rather, describes his actions in terms of a misuse or abuse of the conventions that typically enable people to realize legal effects. In “Legal Responsibility and Excuses,” Hart explicitly seeks to establish a rationale of conditions that may excuse criminal acts—“excusing conditions”—that “no form of determinism . . . could impugn.”39 Seeking to establish such a rationale, Hart wishes to develop a conception of criminal responsibility for an autonomous, self-determining subject whose decisions are respected at law. As a model for his excusing conditions in criminal law, Hart looks to the conditions that are recognized as invalidating certain civil transactions.40 Civil transactions are legally binding arrangements made by private parties for their mutual benefit. These transactions do not refer to relationships or states of affairs that already exist in the world. Instead, they realize individuals’ wishes and, in Hart’s words, “alter their own and/or others’ legal position.”41 They do so by drawing on the force of conventions and contextual elements that precede the specifics of any particular transaction. Civil transactions may be invalidated when one of three possible conditions occurs: (1) when one of the parties to a transaction is insane; (2) when one of the parties to a transaction is mistaken about the transaction’s legal character; or (3) when one of the parties to a transaction is subject to duress, coercion, or the undue influence of other persons.42 Although these invalidating conditions resemble excusing conditions already

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recognized at law, Hart insists there is a difference: criminal acts are excused by definition and civil transactions are invalidated by (lack of ) effect. In other words, civil transactions are invalidated by (lack of ) publicly verifiable changes in the world of appearances. As we have seen, criminal acts are currently excused when one of the elements that define a crime as such is missing. Thus, no matter what harm occurs, when the person who commits this harm does so without a guilty state of mind (because she is insane or because she acts under duress), by definition she does not commit a crime. By contrast, as Hart emphasizes, civil transactions are invalidated when they fail to realize the effect that they are formally set out to accomplish. This occurs when one or more of the conditions necessary to make a particular transaction effective are not in place. For instance, when one party to a contract signs his name “Julius Caesar” and this is not his name, the contract is invalid. A person who believes himself to be an ancient Roman military and political leader cannot choose to alter his legal circumstances because he is insane.43 Because he is insane, he cannot choose, and because he cannot choose, the agreement he enters into with the signature “Julius Caesar” does not reflect his capacity to will. Therefore, the agreement is without legal force. Hart wants to argue that because an insane person is incapable of choosing, if she should kill someone, the crime should be understood to be similarly “invalidated.” An act of murder committed by an insane person does not represent an expression of the person’s will. Consequently, the charge of murder should be without legal effect.44 Hart’s argument—and my reading of it—are informed by the ordinary language of philosopher J. L. Austin’s work on performative utterances.45 Like Hart’s civil transactions, performative utterances do not point to situations in the world but actually bring situations into being. Although they are “merely words,” such utterances do not represent or correspond to reality but rather act in and on it. For example, Austin points out that when the bride and groom say “I do” in a wedding ceremony, their words do not reflect some preexisting state of affairs. On the contrary, in the act of saying “I do,” the bride and groom realize a new state of affairs in the world.46 Situating Hart’s argument in the context of Austin’s ordinary language philosophy, a couple of aspects of the argument become more accessible and make Hart’s project to establish a rationale of excusing conditions more obviously relevant to a discussion of the Supreme Court’s death penalty jurisprudence. The first has to do with the focus of ordinary lan-

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guage philosophy on the use of “everyday” language and the claim that words have meaning by virtue of their use rather than by virtue of their identity with a particular thing or state of affairs in the world. Austin claims that, when the verifiability of an identity between words and things is demanded, and then found to be impossible, a “revolution” occurs.47 Statements may be understood to be nonsensical, or they may be understood to do things other than refer or describe. One such thing a statement may do is act. The skepticism that emerges in the history of this philosophy of language—a skepticism that has the effect of turning philosophers to the actual world, the world of use, which results in a different understanding of the sense of words—is similar to the skepticism whose emergence Nietzsche traces in the fourth stage of the history of metaphysics. At the fourth stage, the Supreme Court, like the early ordinary language philosophers, appreciates how phenomena in the actual world may be meaningful without necessarily referring to some other “real” world. Ludwig Wittgenstein remarks that questions about the essence of language are often posed with the idea that what is being sought lies beneath the surface, so that one seeks by looking into and one finds by digging out.48 The investigation he prefers is one that begins with the claim, “The essence is hidden from us.” When one begins with this claim, one is free to do other things besides excavate. What he does, Wittgenstein says, is bring words back from their metaphysical to their everyday use.49 I suggest that in a similar way, the Court in Tison accepts the idea that the defendants’ intentions are hidden. But rather than giving up on the meaningfulness of intentions, the Court allows that intentions may be defined in and by common interactions that everyone can observe. That is to say, intentions may be approached as everyday rather than metaphysical attributes and therefore may be determined without reference to a person’s state of mind. A second advantage of situating Hart’s argument in the context of Austin’s ordinary language philosophy is more specific. By attending to the ways in which Hart’s argument is informed by or indebted to Austin’s work, one can explore the ramifications of particular claims that Austin makes for that argument. I am particularly interested in the ramifications for Hart of Austin’s discussion of what he calls “infelicities.” According to Austin, successful speech acts require that certain established procedures be followed, that these procedures be conducted by individuals or institutions bearing a certain authority, and that certain other events may have to take

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place in order for a transaction to be completed. Returning to the example of a wedding, Austin points out that when such a ceremony is performed, it is not sufficient for a couple to choose to get married. To be wed, the couple has to consist of a man and a woman, they have to procure a marriage license from the state, and the person who performs the ceremony has to be officially authorized to do so. However, because such a speech act (the pronouncement of a couple as husband and wife) takes place as a function of the force of conventions and contextual elements that precede the specific circumstances of any particular transaction, it is possible for persons to find themselves in a legally binding situation after unwittingly invoking the conventions that customarily produce a certain effect.50 While this is hard to imagine in the case of a wedding vow, it is easy to recognize in the case of a promise. A person may make a promise while assuming that her audience understands she is joking. However, if the joke is not apparent to everyone, she may find herself bound to a commitment she never intended to make. In the case of such an unintended promise, a speech act may “come off ” without being attributable to any particular will. I do not think Hart intends to demonstrate that the success or failure of a civil transaction (and therefore a criminal act) is determined not (merely) by the intentions of a normal person but by the preexisting conditions and conventions upon which that transaction depends. However, as Austin’s work implies, civil transactions can still take place and have force when the conditions Hart has posited as invalidating them are present. Indeed, Hart himself recognizes that there are occasions when a transaction comes off even though it is not intended. For instance, he notes that those who enter in good faith into bilateral transactions with persons who “appear normal” must be protected.51 One who claims to have entered a contract by mistake cannot defend himself by simply saying he made a mistake, against the one who took his words at face value and justifiably relied on them; the party who claims to have made a mistake must pay the penalty of violating the agreement.52 Hart’s discussion of excusing conditions in criminal law indicates how the new culpable mental state the Court identifies in Tison does not collapse the distinction between actus reus and mens rea. At the same time, it indicates how it is not necessary to excavate mens rea to hold a person responsible for the effects her actions have produced. Like the hapless comedienne, or the person who made a mistake entering a contract, the

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Tisons could simply have failed to appreciate the conventions that rendered their acts effective. Thus, like the talentless joke teller who finds herself committed to a promise, two good sons find themselves responsible for the death of a family. In Tison v. Arizona, the Court looks to the context in which the murders took place to determine the mental state of the defendants at the time of the killings. The Court believes the brothers when they claim that they had no intention of causing anyone any harm. However, the Tisons’ credibility does not suffice to settle the issue of their culpability. To determine whether the Tisons may be ascribed a mental state that renders them eligible for the death penalty, the Court looks to the facts of the case. It does so to establish not what the Tisons knew but what they should have known. In this light, the Court considers that both Ricky and Raymond Tison broke their father out of prison, assisted him in stealing a car, and entrusted him, a killer, with the lives of John, Donnelda, and Christopher Lyons and Theresa Tyson. The Court looks to these facts not because they indicate what the Tisons were thinking but because they indicate what the Tisons should have been thinking and concludes that what a normal person already knows by virtue of the natural (though also not inevitable) force of conventions is what the Tisons should know. At this stage in the history of American death penalty jurisprudence, the Supreme Court continues to hold onto an ideal standard of culpability based on mens rea, but it despairs of accessing the state of mind of the defendant directly and so develops an interpretation of it that allows it to retreat to the actual world of social conventions and facts.

5 The Impact of Payne : The Return of Sense to Capital Punishment Jurisprudence 5. The “real world”—an idea no longer of any use, not even a duty any longer— an idea grown useless, superfluous, consequently a refuted idea: let us abolish it! (Broad daylight; breakfast; return of cheerfulness and bon sens; Plato blushes for shame; all free spirits run riot.) —Friedrich Nietzsche, Twilight of the Idols

As we have seen, in Tison v. Arizona (1987) the Supreme Court places its faith in the power of observable norms to indirectly disclose the hidden truth on which the legitimacy of judgment relies.1 Three years later, in Payne v. Tennessee (1990), the Court issues a ruling on victim impact statements that marks a major shift in the epistemology of its approach to judgment.2 Turning from norms to the sensuous experience of individuals in the actual world, the Court puts its faith now in a sensuous experience that is understood to be universally appreciated, but that is attested to solely by individuals whose reports of their sensations are effectively unchallengeable. Chapter 5 originally appeared as Chapter 9 “Beyond Intention” by Jennifer Culbert, pp. 206–225, 4600w from “Killing State: Capital Punishment in Law, Politics, and Culture,” edited by Sarat, A. (1999). By permission of Oxford University Press, Inc.

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Victim impact evidence is information about the financial, emotional, and physical effects of a criminal act on a victim or the members of a victim’s family.3 In 1990, in Payne v. Tennessee, the Supreme Court held that the Eighth Amendment does not prohibit a state from allowing victim impact evidence to be heard by a jury making a sentencing decision in a capital trial. The Court’s decision to allow such evidence to be presented to a jury during the sentencing phase of a capital trial continues to be controversial, due in part to the fact that in 1988 in South Carolina v. Gathers, and two years before that in Booth v. Maryland (1986), the Court had found that hearing victim impact evidence in capital cases violated the Eighth Amendment’s prohibition against cruel and unusual punishment.4 In this chapter, I consider why the Court chooses in Payne to ignore the principle of stare decisis, the policy of courts to stand by precedent and not disturb settled points of law. I argue that it does so in recognition of a new source of authority that ultimately legitimates the decision to sentence a person to death. That new source of authority is pain and suffering. After the Supreme Court’s ruling in Payne v. Tennessee, those who must decide what a defendant deserves as punishment in a death penalty case may turn to expressions of pain and suffering as others may once have turned to God or some other absolute, in trust that these expressions will make it possible for them to answer the question, “In the name of what or whom do we judge?”5 In the first section of this chapter, I review three cases concerning victim impact evidence and the Court’s ultimate decision to permit victim impact evidence to be presented during the sentencing phase of a capital trial. In the second section of the chapter, I argue that the Court’s ruling in Payne v. Tennessee signals the reign of a new “Law” or truth in the criminal justice system. What this new truth means for capital trials is discussed in the third section. In the fourth section, I consider the process by which this new truth is discovered, a process that reveals the metaphysical character of the Court’s ruling which is consistent with the fifth stage of Nietzsche’s history of metaphysics. In the fifth section, I show the particular metaphysical assumptions that are manifested in the qualities that render victim impact statements so powerful in capital cases. Finally, in the sixth section, I consider the sense of the Court’s ruling and the larger significance of its Payne decision for us.

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I. Victim Impact Evidence Reconsidered In 1986, in Booth v. Maryland, the Supreme Court considered for the first time whether the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence. The petitioner, John Booth, was found guilty of robbing and brutally murdering Irvine Bronstein, seventy-eight, and his wife Rose, seventy-five. For these crimes, Booth was sentenced to death. He appealed his sentence on the grounds that a victim impact statement prepared by the state and submitted to the jury during the sentencing phase of his trial injected an “arbitrary factor” into the jury’s sentencing decision. The statement was based on interviews with the Bronsteins’ son, daughter, son-in-law, and granddaughter, who testified to the victims’ outstanding personal qualities and how deeply they would be missed. In addition, relatives spoke about the emotional and personal problems the family faced as a result of the murders. The Supreme Court agreed with Booth that this evidence was prejudicial. The Court stated that when a jury is deciding on sentence during the penalty phase of a capital trial, it may consider only two issues, the defendant’s background and record and the circumstances of the crime. The Court found that information about the impact of the crime on the victim’s family and information about their views on the defendant and his or her crime shed little light on these areas of concern. According to the Court, information provided in victim impact statements serves only to inflame the jury and to divert it from its sole duty—to determine the defendant’s culpability in the commission of the crime for which he or she was convicted. In South Carolina v. Gathers (1988), the Supreme Court reiterated that defendants’ punishments must reflect their personal responsibility and moral guilt. In this case, Demetrius Gathers was convicted of murder and sentenced to death for the killing of Richard Haynes. While the state presented no victim impact evidence during the sentencing phase of the trial, in his closing argument the prosecutor commented extensively on the victim’s character and suggested that Gathers deserved the death penalty because Haynes had been a religious man and a good citizen. The Court affirmed the decision of the Supreme Court of South Carolina to remand the case for a new sentencing proceeding. As the defendant did not know the victim was a devout Christian and a registered voter when he killed him, the Court said that such details were irrelevant to the jury’s delibera-

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tions about the defendant’s blameworthiness. Information the defendant did not know about the victim could not be admitted for the jury’s consideration at sentencing because it had no bearing on the crime the defendant committed. However, two years later in Payne v. Tennessee (1990), the Court indicated that it had ruled incorrectly in both Booth and Gathers. In this case, Pervis Tyrone Payne was convicted of murdering Charisse Christopher and her two-year-old daughter, Lacie, with a butcher knife. He was also found guilty of assault with intent to commit first-degree murder for attacking Christopher’s three-year-old son, Nicholas. During the sentencing phase of Payne’s trial, Christopher’s mother, Nicholas’s grandmother, testified about the psychological effects of the murders on the boy, and in his closing argument the prosecutor revisited Nicholas’s lonely suffering from the moment when Payne left him for dead on the kitchen floor. The jury sentenced Payne to death for the two murders and to thirty years in prison for the assault on Nicholas. Payne appealed his sentences on the grounds that the grandmother’s testimony and the State’s closing arguments should not have been admitted. However, when the case reached the Supreme Court, the Court did not honor its own earlier decisions on the matter. Instead, the Court reversed itself and found that the Eighth Amendment does not necessarily prohibit a capital sentencing jury from considering victim impact evidence. In Payne, the Court offers several reasons for its decision to violate the principle of stare decisis. First, the Court argues that victim impact evidence provides more complete descriptions of the crime for which the defendant is being sentenced. While the point of the penalty phase of a capital trial is to determine what punishment fits the defendant’s crime, the Court says that an appropriate punishment may not be found if the magnitude of the crime is not fully appreciated. Second, the Court claims that the scales of justice are weighted unfairly in favor of the defendant in a capital trial. According to the Court, during the penalty phase of a capital trial the defendant may present the jury with almost any aspect of his personal circumstances or background as a reason for a sentence less than death. By contrast, the state may draw from only a limited number of aggravating circumstances set out by law to argue for the appropriateness of the death penalty. To rectify the imbalance caused by this discrepancy, the Court says, the state should be able to tell a jury about the life the

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defendant took and the ramifications of that act for the victim’s family and society at large. Third, the Court notes that its interpretation of the Eighth Amendment does not preclude the jury from hearing about the uniqueness of the defendant’s victim. Finally, the Court asserts that such information will help the trial court redress some of the harm caused by the defendant. As Justice Sandra Day O’Connor observes in her concurring opinion, “[Murder] transforms a living person with hopes, dreams and fears into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back.”6 While the reasons the Court offers in support of its ruling in Payne v. Tennessee are compelling, they are not particularly new. In his Booth dissent, for example, Justice Byron White argues that the full extent of the harm caused by a convicted murderer includes the harm to the victim’s family.7 In her Gathers dissent, O’Connor argues that the judgment required of a capital sentencer is one sided because defendants are permitted to present a wide range of information about their background while the prosecution is prohibited from so much as giving the sentencer a “glimpse of the life” they took.8 Why in Payne does the Court now find these reasons so forceful as to warrant reversing its previous decisions? The most obvious explanation is offered by Justice Thurgood Marshall. In his Payne dissent, Marshall puts it bluntly: “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”9 As there is nothing new in the majority’s discussion of the problems with Booth and Gathers, Marshall concludes that the Court bases its decision to overrule these precedents not on reason but on “the proclivities of the individuals who now comprise a majority of this Court.”10 Marshall recognizes that there are circumstances under which the Court may depart from precedent—that “the doctrine of stare decisis is not an ‘inexorable command’”—however, he argues that none of these circumstances apply to Booth or Gathers.11 In short, he claims that the majority is ideologically rather than rationally inspired to change the constitutional order. What is more, he accuses the majority of using its power to ignore the doctrine of stare decisis, no matter what the consequences for the rule of law. The tone of moral outrage Marshall assumes in his dissent may sound a bit naïve (or disingenuous) to students of the Supreme Court.

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Changes in the tenor of the Court’s decisions are to be expected with changes in the Court’s personnel. Supreme Court justices are nominated by the president and confirmed by the Senate.12 When nominating persons to the Supreme Court, the president looks for individuals who are qualified for the position. However, the president also looks for individuals who share his view of the world. True, justices are constrained from arbitrarily deciding cases by the conventions of judicial decision making—in particular, the use of legal reasoning and the adherence to precedent. Yet these conventions do not prevent justices from reaching “creative” and “innovative” decisions.13 In a book on the Rehnquist Court, James Simon documents how William Rehnquist, when chief justice, encouraged the Supreme Court to make just such decisions.14 In particular, Simon notes how Rehnquist took advantage of his right as chief justice to assign himself the task of drafting the Court’s opinions when he was in the majority and how, in this position, Rehnquist could analyze the questions put before the Court in such a way as to reopen settled questions of constitutional law.15 The Court itself states that it overrules Booth and Gathers because these decisions are unworkable and badly reasoned.16 Writing for the majority, Rehnquist observes that lower courts have been unable to apply the decisions in a consistent fashion. He also notes that the Court’s decisions in both Booth and Gathers were strongly contested and were decided finally by only the narrowest of margins. Although he says adhering to precedent is usually “the wise policy,” Rehnquist argues that the Court is not constrained to do so, especially when a case involves a constitutional question. He says that in such cases the Supreme Court alone is in a position to review the record critically and correct any past mistakes. Indeed, he writes, it has a duty to do so. As the highest court in the country, the Supreme Court is the only judicial institution in the United States in a position to overrule a previous Supreme Court decision. While the individuals who serve on the Court are not infallible, the Court has final word on the principles involved in the proper adjudication of any legal dispute so that such disputes may be settled once and for all. However, while the Court alone is empowered to decide when it has decided an issue “incorrectly” or when the circumstances have changed so that the Court’s earlier ruling is no longer appropriate, it must be careful not to reverse itself often. As Marshall notes in his Payne

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dissent, lower courts rely on the Court to respect and defend the principle of the rule of law. Should the Court reverse itself frequently, deciding cases would become, in effect, the “mere exercise of judicial will with arbitrary and unpredictable results.”17 The entire legal system would lose its capacity to resolve legal disputes with any authority. Consequently, the Court reverses precedent only under special circumstances. Given this understanding of the importance of stare decisis, the circumstances that Rehnquist cites to justify the reversal of precedent in Payne—in particular, the fact that Booth and Gathers were decided by narrow majorities and that the dissent in both cases was “spirited”—do not seem particularly compelling.18 Indeed, many precedent-establishing cases may be similarly described. Ford v. Wainwright (1986), for example, was decided, five to four, the same year as Booth.19 Such critical observations about the Court’s account of its ruling in Payne suggest a third explanation of the Court’s decision to change its position on the admissibility of victim impact evidence in capital cases. Commentators speculate that the Court changes its position in response to pressure from the victims’ rights movement.20 That the Supreme Court responds to the “sense of justice of the people” is broadly recognized, and in Furman v. Georgia (1972), Marshall himself argues that such a sense is an appropriate reason for ignoring the doctrine of stare decisis. In Furman, Marshall claims that capital punishment violates the Eighth Amendment not because it is “objectively” excessive punishment but because it is “morally unacceptable” to the people of the United States.21 A growing victims’ rights movement in this country is based on the idea that the criminal justice system has generally ignored the needs and interests of victims of crime and should become more responsive to these concerns.22 According to Marlene Young, a member of the founding board and a former executive director of the National Organization for Victim Assistance (NOVA), the victims’ rights movement developed from efforts in the 1960s and 1970s to establish witness/victim programs, to pass victim compensation legislation, and to assist victims of domestic violence and rape.23 The variety of victim assistance programs in the United States reflects the diverse origins of the victims’ rights movement. In addition to NOVA, among the most well-known programs are the National Center for Victims of Crime (NCVC), Mothers Against Drunk Driving (MADD), Society’s

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League Against Molesters (SLAM), the Victims’ Assistance Legal Organization (VALOR), Crime Victims United, Parents of Murdered Children, and Memory of Victims Everywhere (MOVE). In addition to establishing a variety of support and advocacy groups, the movement has successfully lobbied for both state and federal legislation.24 Although it failed to get an amendment to the Constitution of the United States ratified, with the passage of the Justice for All Act in October 2004 it did succeed in establishing the rights of crime victims in federal proceedings.25 Some critics of the victims’ rights movement suggest that the decision to permit the presentation of victim impact evidence during the sentencing phase of capital trials is the product of an ideological struggle fought by wealthy, vocal victims predisposed to seek revenge or retaliation for harms suffered.26 Other more sympathetic critics of the victims’ rights movement claim that it has been manipulated by politicians with a stake in expanding state power.27 However, as an explanation of the Court’s change of heart, neither the influence of rich people nor the power of politicos accounts for the fact that the Court’s ruling marks a shift not only in what can be heard during the penalty phase of a capital trial but also in what ultimately authorizes the sentencing decision. To this observation I turn in the next section.

II. The “Law” of Pain and Suffering It is my contention that in Payne v. Tennessee, the Supreme Court recognizes pain and suffering as a truth that grounds the law. This truth or “absolute” serves as a prior and higher “Law,” which does not itself issue commands but which grants or constitutes the power to command and determines the conditions under which that power is legally exercised. In brief, this higher Law or truth endows the power to make law with legitimacy. In so saying, I suggest that at this stage in the history of American capital punishment jurisprudence, the Court fully embraces law as positive law.28 In the past, human beings write the law of the land, but the fact of this writing is not enough to render that law authoritative. An origin beyond human power, a transcendent source of authority, is still required to validate the law that is declared.29 Jacques Derrida frames this observation

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as a question: “Who signs, and with what so-called proper name, the declarative act which founds an institution?”30 The “proper name” or truth that authorizes the declarative act that founds an institution requires no sanction. Without force or argument, this absolute commands obedience. In U.S. history, the name of this absolute is often taken to be “the people.”31 However, as Derrida points out in his reading of the Declaration of Independence, “the people” do not exist before the Declaration, at least not as such. “The people” are constituted and then authorized, as such, by a higher power. According to Derrida, “[God] comes, in effect, to guarantee the rectitude of popular intentions, the unity and goodness of the people. He founds natural laws and thus the whole game.”32 In other words, “the laws of nature and nature’s God,” to which the Declaration of Independence makes explicit reference, ultimately grant or constitute the power to command and determine the conditions under which that power is legally exercised.33 In the assertion “We hold these truths to be self-evident,” Hannah Arendt identifies another transcendent source of authority in the Declaration of Independence.34 Like God, these truths require no argument because of their patent validity. “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness,” and so on, are statements before which human will is irrelevant. Like a divine revelation, a logical proof, or a gun to the head, these assertions compel assent. We are forced (but not necessarily against our will) to accept their truth. We do not seek explanations for their meaningfulness because it does not occur to us that their meaningfulness can be questioned. Unjustifiable, undeniable, and irresistible, the power of self-evident truths endows the power to make law with legitimacy. Now, I suggest, pain and suffering are such a self-evident truth, and this truth is represented by victims in courts of law. Victims are defined as such by state or federal statutes, which typically extend the term to include the surviving spouse, child, and/or next of kin of a person who has been illegally killed. These individuals testify to terrible mental, physical, and social harm. Understood as the direct or indirect object of the defendant’s actions, they (re)present in court the pain and suffering that ultimately legitimates the judgments made there.35

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It may seem counterintuitive to argue that stories of pain and suffering remind judges and jurors of the truth that authorizes them to impose death sentences, particularly as critics of victim impact statements argue that such statements permit, if not indulge, the play of prejudice in sentencing decisions.36 As prosecutors are well aware, the more attractive and sympathetic the victim is, the more heinous the crime appears and the more deserving of punishment the criminal becomes.37 Critics claim that the (un)ease and eloquence of those willing to testify to their pain and suffering in the wake of the murder of a family member will unfairly affect sentencing decisions. To make matters worse, the poise and confidence with which individuals speak will often be a function of their cultural and class backgrounds. Thus, when juries are permitted to hear victim impact evidence, various forms of prejudice will be given more room for play in the sentencing of defendants in capital trials. All of these criticisms suggest that victim impact evidence will only exacerbate the partial nature of justice in death penalty cases. The decision to permit the presentation of victim impact evidence in capital trials makes sense, however, when it is understood as an attempt to remedy the very ill that the Court is criticized for exacerbating. If pain and suffering are taken to be a “self-evident truth,” statements of pain and suffering represent in the legal system the prior and higher Law from which it derives its legitimacy. Rather than undermining the reliability of the criminal justice system, then, victim impact evidence recalls for judges and juries the authorizing truth that validates the decisions they make.38 That the victims’ right movement perceives pain and suffering as a self-evident truth authorizing the legal system is apparent in the way proponents make arguments on behalf of victims’ rights causes. These arguments take for granted the legitimacy of victims’ claims to rights. As there is no need to explain, the basis of these claims is never justified. Because their validity is self-evident, the popularity of support for victims’ claims is good enough reason to take or support a position. In an article defending a Victims’ Rights Amendment to the Constitution, law professor Paul Cassell provides a good example of this kind of argumentation.39 Near the end of the article Cassell takes issue with Justice John Paul Stevens’s dissenting opinion in Payne v. Tennessee on the grounds that Stevens says it is a sad day for a great institution when the Court’s decision admitting victim

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impact statements is greeted with enthusiasm by a large number of concerned and thoughtful citizens. Cassell comments, “One would think that public consensus on the legitimacy of those rights would be a virtue, not a vice.”40 Here as elsewhere in the article, Cassell does not defend the Court’s decision with a substantive argument. Instead, he refers to the popularity of the view endorsed by the Court’s decision. The validity of that view does not need to be explained or defended: the fact that it is propounded with enthusiasm is all the proof Cassell offers in support of his claim that Stevens is wrong to be disappointed in the Court.41 Conversely, critics of victim impact evidence also inadvertently support the assumption that statements about pain and suffering remind juries of the self-evident truth that sanctions the decisions they make. Critics do this when they express concern about the emotional impact victim impact statements will have on unwitting judges and jurors. For example, in an article deploring the Court’s decision in Payne v. Tennessee, Catherine Bendor assumes that stories of pain and suffering will influence sentencing decisions in capital cases because these stories will confront judges and juries with a force they cannot critically engage or challenge.42 Bendor argues, “The only clear role for this evidence is to serve as a direct appeal to the emotional sympathies of the jurors.”43 Evidence intended to appeal to the emotional sympathies of jurors is not supposed to be considered admissible in death penalty cases. Since Gregg v. Georgia, as Stevens observes in his Payne dissent, “[The Supreme Court’s] capital punishment jurisprudence requires any decision to impose the death penalty to be based on reason rather than caprice or emotion.”44 However, Bendor’s argument against the Court’s decision in Payne does not only point out a possible contradiction in the Court’s capital punishment jurisprudence; it also takes for granted that the sentencing authority in capital cases will find it impossible to resist the power of pain and suffering. By contrast to arguments such as Bendor’s, my intent here is not to suggest that victim impact evidence “corrupts” sentencing decisions in capital cases. Rather, I want to suggest that the decision to permit victim impact evidence in capital trials indicates that the Court recognizes new grounds for authorizing these decisions. Whether victim impact evidence has actually affected sentencing outcomes does not change the fact that sympathy—and the role sympathy should play in sentencing decisions—is assumed.45

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III. What Pain Means When pain and suffering are recognized as ultimately authorizing the American justice system, legal categories are revitalized in keeping with the transvaluation of the values that underlie the law. In Chapter 4 I have shown how, during the sentencing phase of a capital trial, the defense may present as mitigating evidence anything that it believes may support a case for mercy, and I argued that this kind of evidence makes it increasingly difficult to find that any particular defendant is an autonomous, rational, selfdetermining subject who may be held responsible for her actions. The Supreme Court’s decision in Payne v. Tennessee addresses this problem. By permitting the sentencing authority to hear victim impact evidence, the legal system is able to affirm, in principle at least, that an agent of harm exists. While trials such as Ricky and Raymond Tison’s raise significant doubts about the validity of the categories on which the legal system traditionally relies to determine the cause of a particular harm and to assign responsibility for that harm, the reality of pain and suffering to which thousands of people can testify is a bulwark against the final dissolution of categories such as “agent,” “actor,” “subject,” “act,” “cause,” “responsible,” “culpable,” “guilty.”46 In brief, the experience to which a victim testifies implicitly revalidates the assumption of particular kinds of legal subjects, objects, and verbs, which are threatened when the legal system focuses primarily on the defendant and the quality of her will. For the pain to which victims testify begs a very simple question: why? When confronted with a person who is in emotional and physical distress, people will look for an explanation, an agent or act that will account for the victim’s suffering. The victim is an effect, one that logically implies a cause.47 The victim’s experience of pain and suffering points to the existence of a victimizing agent, a person who acts in such a way as to cause him great pain and suffering.48 In The Body in Pain, Elaine Scarry provides an explanation of how this deitic gesture occurs.49 Scarry suggests that the experience of pain generates an experience of agency or, more properly, of being acted on by an agent. Specifically, she says pain is “an immediate sensory rendering of ‘against,’ of something being against one, and of something one must be against.”50 At the same time, pain is a “rendering of the ‘something’ that is against, a something at once internal and external.”51 In other words,

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Scarry claims that the effects of an act experienced in the object imply the presence of a subject who is the source of that act and of these effects. Thus, a victim knows himself to be afflicted by something, to be tortured by someone.52 In a criminal legal setting, the unmistakable pain and suffering experienced by the victim imply the presence of a criminal who is the cause of that pain. The point seems obvious when, in an article about race and the experience of victimization, Stephen Carter observes that “if there is no victim, there is no offense.”53 According to Carter, without a recognized victim to register the effects of a crime, an act is not recognized as a crime.54 As only the victim of these effects is in a position to testify to their reality, in some way the victim is the only evidence of a crime, and of a criminal. Carter assumes that the social reality of an act is determined by its effects, and the Supreme Court seems to agree with him when it insists that lower courts may take into account the effects of a defendant’s crime on the members of his victim’s family, as these effects define, at least in part, the crime the defendant committed.55 The Court reinforces the impression that the categories of subject and object are discrete and coherent when it argues for the importance of “balance” between the defendant’s interests and the victim’s interests in a criminal sentencing proceeding. While the Court is not swayed by Justice Antonin Scalia’s dissent in Booth v. Maryland, a few years later Scalia’s opinion is essentially adopted by the Court as its own. In his Booth dissent, Scalia claims: Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced—which (and not moral guilt alone) is one of the reasons society deems his act worthy of the prescribed penalty.56

According to Scalia, criminal trials appear unjust because the defendant is allowed to present the jury with personal information supporting the argument for a sentence less than death. Citing Justice Benjamin Cardozo in Snyder v. Massachusetts (1934), the Court claims in Payne v. Tennessee that “justice, though due to the accused, is due to the accuser also.

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The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”57 What is being affirmed here seems to be a matter not of substance but rather of appearance. In her critique of Payne, Berger seconds this view when she observes that the idea of some sort of “balance” between the defendant’s interests and the victim’s interests contravenes the purpose of the criminal sentencing proceeding because that purpose is to make a decision about the defendant, not the victim.58 To explain why the Court tolerates victim impact statements and prosecutorial argument based on such statements during the penalty phase of a capital trial, Vivian Berger ventures: “Witnesses to the victim’s life being permitted to share a podium with witnesses to the defendant’s life produces a superficial symmetry pleasing to the public eye.”59 However, the passage from Scalia’s dissent in Booth cited above does more than suggest that the criminal trial seems one sided when the victim’s survivors are not allowed to testify to their pain and suffering. In Scalia’s Booth dissent, he intimates that stories told by and about victims will lay before the trial court a reality that is otherwise missing, a reality that is explicitly associated with suffering. Witnesses for the defendant in capital trials typically tell stories of extraordinary abuse and poverty, but in Scalia’s opinion these witnesses testify only to “pressures beyond normal human experience.”60 Employing the vocabulary of suffering exclusively for victims of crime and their survivors, Scalia implies that victims are uniquely capable of communicating the universal experience of pain and presenting the sentencing authority in a capital case with “the full reality of human suffering.” What is more, Scalia indicates that this reality is “produced” by the defendant. With this choice of words, Scalia insinuates that suffering is something the defendant creates and implicitly controls but does not somehow herself endure. In this way, Scalia undermines the implications of the arguments that the defendant presents during the penalty phase of the trial, arguments that suggest that the defendant’s actions are, at least in part, the effects of other people’s actions. Scalia calls the effects of other people’s actions on the defendant “pressures,” and in so doing, subtly maintains the defendant’s integrity as a subject whose actions may be influenced but not determined by external forces.

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In Justice David Souter’s concurring opinion in Payne v. Tennessee, the victim plays a central role in establishing not simply the reality of the criminal but also the reality of the criminal’s culpability. In his opinion, Souter states, “The fact that the defendant may not know the details of a victim’s life and characteristics, or the exact identities and needs of those who may survive, should not in any way obscure the further facts that death is always to a ‘unique’ individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable.”61 By conflating knowledge of harm to someone (death to a unique individual and harm to some group) with intention to harm someone (a consequence so foreseeable as to be inevitable), Souter suggests that the defendant may be treated not merely as a responsible agent but also as one who deserves to die for what she has done. A harm that is so foreseeable as to be virtually inevitable may be taken to be a harm the defendant knows herself to be committing when she performs the underlying act. Victims testify to that virtually inevitable harm. It follows that the defendant acted to cause the pain and suffering they represent.

IV. The Return of Bon Sens The apparent infirmity of legal categories in capital cases, and the Court’s obvious efforts to revitalize them in rulings like Payne v. Tennessee, indicate that the truth authorizing the law is so exhausted that previously unassailable presuppositions may now be critically examined and found wanting. In the context of a discussion of death penalty jurisprudence, this point may seem hardly worth making. Defense attorneys for prisoners on death row and critics of the practice of capital punishment constantly seek opportunities to cast doubt upon the capacity of a human system of justice to punish with death in a manner that is truly just. Supporters of capital punishment respond by accusing capital punishment opponents of manipulating the law and willfully misinterpreting the Constitution to thwart the true aspiration of the criminal justice system. However, when we consider more carefully the skepticism expressed by both opponents and supporters of capital punishment, the Supreme Court’s decision in Payne takes on a different significance. For despite their

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disagreements about the content of these truth claims, both opponents and supporters assume that what is shown to be a mere appearance of truth will be—and should be—rejected in favor of truth proper. That is to say, both opponents and supporters of capital punishment manifest a will to truth, a will to distinguish between truth and what only appears to be truth, with the expectation that that which remains itself, stable, certain, constant, and “true,” is superior to that which changes, mutates, appears, and passes away. Thus, we need not limit the terms of our interpretation of the Supreme Court’s decision in Payne v. Tennessee to those of a victims’ rights battle won or lost in a legal war over the practice of capital punishment. We may also describe the Court’s decision in terms of a history of metaphysics. Again, metaphysics is concerned with the fundamental nature of reality and being. In the name of this fundamental nature, Nietzsche argues, the will to truth ruthlessly destroys any claims to be the truth that it exposes as mere semblance, error, simulation, deception, or delusion.62 The Court’s rationale for its Payne decision reflects the assumptions associated with the fifth stage of Nietzsche’s history of metaphysics: 5. The “real world”—an idea no longer of any use, not even a duty any longer— an idea grown useless, superfluous, consequently a refuted idea: let us abolish it! (Broad daylight; breakfast; return of cheerfulness and bons sens; Plato blushes for shame; all free spirits run riot.)63

This is the moment in the history of metaphysics when Nietzsche begins to dismantle Plato’s fundamental doctrine repudiating the world of the senses and positing the supersensuous as true being. As Martin Heidegger observes in his famous reading of Nietzsche’s history of metaphysics, Nietzsche begins dismantling Plato’s doctrine by putting the “real world” in quotation marks.64 The quotation marks signify a new and critical distance on the idea of the supersensuous. By literally containing the idea, the quotation marks objectify it. Then, as an object, the idea may be critically evaluated for the first time. At an earlier moment in Nietzsche’s history, the hegemony of the real world would have made such an evaluation impossible, and the terms of the evaluation Nietzsche suggests would have seemed ridiculous. But Nietzsche now evaluates the validity of the supersensuous in terms of utility. That is to say, the use value of the idea of the “real world” is the deciding

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factor in its feasibility as an idea. Its truth is taken to be a matter of the utility or disutility, pleasure or displeasure, it brings. This means that the “real world” is evaluated in terms that are meaningful only in the context of this world, the world of the senses, where things happen and seem, rather than the world where things always already are as they essentially are. In this world, according to Nietzsche, the idea of the “real world” turns out to be useless. Indeed, the idea isn’t even useful as a duty or a force of moral obligation anymore. And because the idea of the supersensuous has become useless, it is no longer true for us. It is refuted by its lack of utility. Once it is disproven, we are invited to abolish the “real world” once and for all. Nevertheless, the idea of a world that stands over all and sets the standard by which what is true is recognized remains. The only world left to play this role is the world of the senses, however. Thus, the part once played by the supersensuous is now taken on by the sensuous; the sensuous now sets the standard. Hence, the “real world” is evaluated in terms that reflect the predominance of this world. But this means that there does, after all, remain a standard by which the “real world” is evaluated. Hence, the end of the “real world” does not signal an end of the idea of a value that remains itself, stable, certain, and so on. A value or truth may still serve, then, as a prior and higher Law or absolute that endows the power to make law with legitimacy and, thus, authorizes the final decisions we make. Against this backdrop, the particular metaphysical significance of the Supreme Court’s decision in Payne may be recognized. Specifically, we may appreciate the distinctively sensuous quality of the truth the Court embraces with this decision. A truth is still required to ground the law because we still demand certainty of our judgments, but the truth we trust, the truth that appears self-evident to us, is no longer constituted by what is above and beyond the senses. Such truth is rejected in favor of a truth found in this world.65 That truth is, of course, pain and suffering.

V. The Metaphysics of Pain The Supreme Court’s acknowledgment of the value of pain and suffering in the jurisprudence of capital punishment may be dismissed as long overdue recognition of the fact that the legal system is ultimately based on phenomena that have no supernatural significance.66 However, to do so

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would be hasty because pain and suffering are not simple “data.” Pain and suffering are not mere physical or natural phenomena, meaningless in themselves. Theodor Adorno shows us this in Negative Dialectics, and his discussion of pain and suffering provides an excellent example of the kind of sensuous metaphysics the Court endorses in Payne.67 In Negative Dialectics, Adorno argues that pain and suffering are nothing less than “the convergence of specific materialism with criticism, with social change in practice.”68 Pleasure and displeasure are not just facts of consciousness, Adorno insists. Pleasure and displeasure are “invaded by a physical moment.”69 That is to say, they have a corporeal or somatic element. Thus, when we experience what Adorno calls “conscious unhappiness,” we are not simply conscious of the actuality of pain and suffering. We are also provided with a reminder of the mind’s physical aspect. Idealists may not, therefore, deny pain and suffering as a delusion of the mind. More importantly, conscious unhappiness enables us to resist the “identitarian philosophy” that, Adorno claims, would talk us out of our experience of pain and suffering. Identitarian philosophy strives to identify the material world with the thoughts that hope to understand it, so that concepts exhaust the things they conceive and there is no remainder with which to critically engage appearances. Identitarian philosophy would describe or represent pain and suffering as mental phenomena, contained totally in the mind. According to Adorno, only conscious unhappiness, spurred to life, as it were, by pain and suffering, resists this process of reproduction of the physical aspect into “the spirit’s epistemological copy.”70 And in this way, conscious unhappiness preserves morality. Adorno says that morality is only possible because pain and suffering tell us that things should be different. The smallest trace of senseless suffering brings to mind the distance between what is and what ought (not) to be. According to Adorno, without experience of this distance we cannot critically challenge the form of thought that thrusts us into “the absolute loneliness of a helpless object.”71 The conscious unhappiness we experience when the mind knows pain and suffering moves the mind to think, and thinking shatters the philosophy that would obliterate the distance between the is and the ought, between what appears to be as it should and what is as it should be. In Adorno’s account, then, pain and suffering enable us to cross the threshold between the material world, the world of physical experience, and the immaterial world, the world of “facts of consciousness” and, ultimately,

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morality. Pain and suffering do so by negatively (dialectically) informing us of another reality, a reality where we do (not) hurt. In this way, the actual, felt experience of pain and suffering provides a standard against which we may critically measure the world we sense, and it simultaneously motivates us to try to affect the world we sense to make it more closely approximate the world we know but do not yet (because we are in pain and we are suffering) feel. Claiming that “it is in the unvarnished materialistic motive only that morality survives,” Adorno exemplifies the fifth stage of Nietzsche’s history of metaphysics, the stage at which we are invited to abolish the “real world” but may nevertheless retain a standard by which to measure the “validity” of our experience.72 The metaphysical standing of pain and suffering that Adorno elucidates in Negative Dialectics is reflected in the qualities that render victim impact statements particularly powerful in capital cases. This reflection is most clear in the fact that what victims say in victim impact statements cannot be refuted.73 Because victims testify about states of consciousness, it is not only impractical but also logically impossible to contradict their testimony. In capital trials, then, victims are uniquely situated. Even expert witnesses who testify with great authority about some aspect of a case may be challenged by other experts who disagree with them. By contrast, victims who testify about their feelings introduce into the courtroom (material) facts that can be neither verified nor denied.74 The victim refers to things or even states of affairs in the world, but the reference is indirect. The victim’s “conscious unhappiness” is not simple awareness of his or her pain and suffering but is rather a “negative” reflection of the physical nature of the victim’s mind, a reminder in a reverse or negative image of the physical aspect of our minds that identitarian philosophy would have us neglect or forget. We cannot confirm in the material world the victim’s experience; but at the same time, it is only this most intimate, this most private, this most ineffable experience—the experience of pain and suffering—that can show us the way from ourselves and remind us of our material aspect and our being with others. The private, sensual, ineffable character of the experience of pain and suffering makes it difficult to show when, if at all, a victim is lying or otherwise misrepresenting the experiences of which he or she speaks. Yet the speech may itself suggest the presence of the impulse to connect with others to ensure continued physical existence.

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The difficulty of showing when victims are misrepresenting their pain or are lying about their feelings has practical implications for death penalty trials. Defendants’ lawyers will hesitate to attack victims who testify against their clients because a brutal cross-examination might reflect badly on their clients and make them seem even more cruel and unsympathetic than they already do.75 Indeed, the most the defense can hope to accomplish by questioning a victim is to cast doubt upon the victim’s character.76 In the final analysis, it cannot disprove what the victim says about his or her emotional state or sense of physical well-being. Second, the experience to which victims testify has a dual nature that reflects the metaphysical standing of that experience. The experience of pain and suffering that victims represent is always particular and universal. Everyone is intimately familiar with pain and suffering, yet no one can presume to know what any particular person is feeling exactly. The specificity of the individual’s experience provides the “materialistic motive” for hearing the individual’s testimony and perhaps even for considering the case in the first place. Simultaneously, the generality of knowledge of the experience informs us of the moral dimension of the experience of which the victim speaks. Again, Adorno’s work illuminates this point. He claims that pain and suffering provide a standard against which we may critically measure the world. Pain and suffering also goad us into that world where we use our experience to critically engage the philosophical enterprise that would isolate us from one another. There is no question that the circumstances that give rise to a victim’s suffering are always particular. Whereas the cause of the pain may be a common daily event like a pinprick, the suffering of that pain occurs always and only in a particular person. What is more, the “quantity” of pain inflicted provides no certain measure of the “quality” of suffering. The amount of adversity a particular person faces does not neatly or necessarily indicate how much pain he or she feels. While some people seem capable of withstanding incredible amounts of physical and psychological hardship, others seem to suffer terribly from the smallest affliction. As there is no “objective” measure of suffering, critics of victim impact evidence argue that victims who testify in death penalty cases may pretend to suffer more than they actually do, so that the sentencing authority in the case will punish the defendant as severely as possible. In Booth v. Maryland, the Court itself notes that the defendant “rarely would

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be able to show that the family members have exaggerated the degree of sleeplessness, depression, or emotional trauma suffered” and refuses to permit victim impact evidence in capital trials.77 However, in Booth the Court also points out that the victim may not always intend to misrepresent her suffering. While one victim’s sense of loss may be as great as another’s, she may not be as willing or able to express it. As a result, her suffering may not be treated with the same respect as the suffering of a more eloquent victim. Yet, while this may be so, pain and suffering are also something with which everyone is intimately familiar. Indeed, the assumption that all human beings know pain is a more or less explicit premise of most moral and political philosophy, including philosophy that is not particularly or necessarily sympathetic to those who suffer. Utilitarianism, for instance, is based on the premise that pain governs human beings in all they do, in all they say, and in all they think.78 According to Jeremy Bentham, pain is one of two “sovereign masters” and “every effort we can make to throw off our subjection, [serves] but to demonstrate and confirm it.”79 People will always choose the course of action that reduces the amount of pain they have to endure. And while social contract theory provides a very different account of the principles of good government, arguably social contract theorists agree with Bentham to the extent that physical and mental hardship motivate individuals in the state of nature to give up their autonomy and submit to the Leviathan. Thus, by testifying to nothing more or less than his or her personal experience of pain and suffering, the victim in a capital trial makes manifest a universal experience without undermining the specificity of its form or content.80 As I have already noted, critics of victim impact evidence inadvertently lend support to this claim when they express concern about the emotional impact that victim testimony will have on unwitting judges and jurors.81 Ironically, similar support is also lent by critics who argue that victim impact evidence should not be allowed in court because defendants, when confronted with the testimony of their victims, will be encouraged to catalogue all of the abuses they have suffered in their own lives.82 Martha Minow, for example, claims that the classic rejoinder to victimhood takes the form, “Don’t blame me; I’m a victim too.”83 But with this claim Minow acknowledges that everyone is or can be identified as a victim. While she may intend to criticize the kind of psychological material

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that is presented as mitigating evidence in capital trials, her criticism actually reveals that the experience of pain and suffering is terribly common. Of course, Minow is also implying that defendants will identify themselves as victims to escape blame for their actions. However, this suggestion only calls attention to the point I made before, that claims to victimhood are difficult, if not impossible, to deny. Noting this herself, Minow argues that it is necessary to develop criteria by which to evaluate competing claims about victimization. Specifically, along with attention to structures of oppression, she calls for explicit normative standards for evaluating historical harms.84 A third way in which the metaphysical character of the experience to which victims testify is demonstrated by the certainty with which they speak, a certainty that is due to their proximity to death. People who take the stand during the sentencing phase of a capital trial to tell the court about their pain and suffering are distinguished from all other people who endure physical and emotional trauma by one essentially arbitrary fact: they were close to a person who was murdered. Indeed, they are victims of the defendant’s crime by virtue of a literary figure, metonymy. Metonymy is the substitution of a word or concept for another on the basis of proximity. A classic example of metonymy is the use of the word crown to refer to a monarch. Because a monarch wears a crown, there is an association between the two words. One can use that association as a principle for substitution so that one may use the word crown to mean king. In the context of a capital trial, the victims who are present and can testify during the sentencing phase to help determine the defendant’s fate may do so on the basis of their nearness to the person murdered. Grieving family members assume the place of the murdered person and speak in court in his name. The fact that they speak is due to an incidental association, the purely circumstantial relation of relatives. On the basis of this metonymic substitution, the pain and suffering that victims express may be understood as the equivalent in felt experience of what is unfeelable in death.85 Due to the greatness of their loss, victims are deprived of their feeling for all other experiences. Consequently, they no longer seem to pay attention to the world in which they live with other people.86 Victims testify to this condition; they speak of an experience of not being able to feel or of an experience of not being able to feel anything but acute lack or absence. In so doing, victims speak of the only universal

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truth of this world; they testify to the truth of human mortality.87 And because of their proximity to this truth, victims can speak with a certainty others do not possess.88 The “supernatural” power of this speech is attested to by Justice O’Connor in her concurring opinion in Payne v. Tennessee. As noted already above, in Payne O’Connor finds that victim impact evidence in death penalty cases does not violate the Constitution because the Constitution does not prohibit the state from trying to return what is special and unique about a murdered person to his lifeless body. However, by suggesting that the uniqueness taken from a person when he is killed is restored by the state when it permits his friends and family to testify about him, O’Connor implies that the corpse is somehow brought back to life on the stand. It would seem that O’Connor believes those who testify to their own personal suffering and pain relive not only the murder victim’s experience but also reanimate his very person.

VI. The End of Pain When we refer to pain and suffering as the truth that sanctions the judgments we make of one another, our claim tells us something about ourselves. Specifically, it tells us that we seek a transcendent source of authority in this world to validate the power that declares and enforces the law. It also tells us that, while we still seek such a source of authority, the will to truth has led us to destabilize the foundation of the distinction between Plato’s two worlds, the “real world” and the “apparent world.” By recognizing pain and suffering as the Law, the hierarchy between the supersensuous and the sensuous is inverted, and the “physical aspect,” repudiated by Plato for hindering us in the acquisition of the knowledge of true being, is now taken to be, in Adorno’s words, “the only source of whatever hope the mind can have.”89 In On the Genealogy of Morality, Nietzsche argues that the weak save themselves from their sense of purposelessness by turning suffering into something to will. Nietzsche says that this transformation is secured with the help of “the ascetic ideal,” an ideal that posits an existence opposed to this world in favor of another in which life is constant, certain, and “real.”90 In the will to denounce this world in favor of that one, in short,

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in the will to reject the world we experience and everything that belongs to it in the name of a better world, human suffering comes to mean something. Specifically, it comes to mean that a better world exists. According to Nietzsche, “satisfaction is looked for and found in failure, decay, pain, misfortune, ugliness, voluntary deprivation, destruction of selfhood, selfflagellation and self-sacrifice.”91 Satisfaction is found there because suffering means we are capable, if not destined, for something different. For the ascetic man, pain and suffering give meaning to purposeless existence. For the Supreme Court, I suggest, pain and suffering give sense to what otherwise would appear as having no justification or explanation—a law that authorizes partial, imperfect human beings not simply to judge others but to punish some of those others with death. So as no longer to be “like a leaf in the breeze, the plaything of the absurd, of ‘nonsense,’ ” the Court appears to have turned anguish and injury into something if not desirable, then something potent, something irresistible.92 For with the Payne decision, the Court makes an absolute of pain and suffering and maintains the legitimacy of a rule of law threatened by uncertainty.

6 The End of Error: DNA Technology and the Decision Not to Decide in Capital Cases 6. We have abolished the real world; what world is left? the apparent world perhaps? . . . But no! with the real world we have also abolished the apparent world! (Mid-day: moment of the shortest shadow; end of the longest error; zenith of mankind; INCIPIT ZARATHUSTRA) —Friedrich Nietzsche, Twilight of the Idols

The Supreme Court’s ruling in Payne v. Tennessee (1990) marks a point at which the actual world—the world of individual sensation— eclipses the real world of absolute truths.1 But at the dawn of the new millennium, a new and impersonal truth revalues the value of both worlds. Two events mark the occasion when the criminal justice system recognizes this new truth as legitimating the law that authorizes us to sentence other human beings to death. The first event is the January 10, 2003, decision by Illinois Governor George Ryan to commute the sentences of 167 people on death row to life in prison and to pardon four other people on Illinois’s death row on the ground of actual innocence. The second event is Massachusetts Governor Mitt Romney’s effort beginning in September 2003 to devise a “foolproof ” capital punishment statute for his state. As ideologically opposed as these two events might seem, they are both expressions of faith in a new authority—DNA.

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In this chapter, I argue that DNA solves the problem of arbitrariness in capital cases in the contemporary capital punishment system in a new way. This may not be apparent at first glance, as DNA is so easily incorporated into a narrative about the progressive rationalization of the death penalty. By making it possible to identify a particular individual as the source of genetic material present at the scene of a crime, DNA testing assists the legal system in its efforts to convict the guilty and exculpate the innocent. In so doing, DNA testing assures critics that death sentences are now carried out only on those who truly deserve the ultimate punishment. However, DNA does not solve the problem of arbitrariness in capital cases by providing a scientific standard for determining what is true. It does so by realizing the transformation of the practice of judgment itself. With the advent of DNA testing, no deliberative or discretionary element of decision making remains. To judge is no longer to subsume an apparent instance under a real rule or principle or even to somatically appreciate a wrong to be righted. Judgment becomes the legal acknowledgment or recognition of what is simply always already the case. The practice of judgment becomes “objective.” To demonstrate how DNA and DNA testing realize this transformation of the practice of judgment, this chapter begins by describing DNA and the properties it brings to its engagement with the criminal justice system. Calling attention to how these properties are operationalized at law, particularly in capital cases, I show in the second section of the chapter how DNA comes to be understood as the “gold standard of truth telling.” In the third section, I explore the consequences of this idea for the practice of judgment. Using the language of Governor Ryan’s decision in Illinois to support my argument, the fourth section of the chapter shows how judgment is now predicated on a technological kind of revealing. Judgment so practiced, I argue, expresses a sense of futility at the possibility of ever determining for ourselves what is true. Hence, it is profoundly passive, which is to say it is simultaneously cynical and deferential. In the final section, I consider the impact of this practice of judgment on the future of the death penalty in the United States. This future is unclear, I suggest, because the appearance of DNA in the criminal justice system marks the culmination of a history of capital punishment that ends, like Friedrich Nietzsche’s history of metaphysics, in an ambiguous nihilism. The fatalism

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that characterizes Governor Ryan’s embrace of DNA may be a sign of our reluctance to determine the nature and meaning of events for ourselves. However, it may just as well signal a new willingness to admit that no absolute truth or authority guarantees the legitimacy of any such determination, leaving us to decide for ourselves.

I. DNA and Its Properties at Law Deoxyribonucleic acid, DNA, is the genetic material present in the nucleus of cells in living organisms. DNA famously looks like a twisted ladder with sides of phosphate and deoxyribose sugar molecules and steps composed of pairs of organic bases.2 A unique, repeating sequence of the base pairs is called a gene. Each gene is responsible for the production and regulation of a specific cell activity. In human beings, most base pair sequencings are the same. However, certain base pair sequencings are unique to the individual. Differences in the sequencing of base pairs are known as polymorphisms. In the mid1980s, Alec Jeffreys, a British geneticist, came up with a method of isolating and making images of these sequencings. The procedure he developed, called Restriction Fragment Length Polymorphism Testing or RFLP, ultimately creates a “DNA fingerprint” that can be used in DNA profiling. RFLP testing is reliable, but to create a DNA fingerprint a relatively large sample of cells containing DNA in good condition is required. When DNA is old or improperly stored, it breaks down into fragments, and RFLP testing cannot be done.3 This problem was solved later in the 1980s when Dr. Kary Mullis at Cetus Corporation in New Jersey developed a process that can analyze a very small sample of cells or cell samples containing degraded DNA using an enzyme to “amplify” or copy specific regions of the DNA.4 This process is called the Polymerase Chain Reaction or PCR, and since PCR was developed, PCR testing of nuclear DNA has become the most widely employed technique in the field of molecular biology.5 As of 1996, forty-six states accepted DNA evidence in criminal proceedings.6 The first state high court to rule on the admissibility of DNA evidence was the West Virginia Supreme Court in 1989.7 That same year, the New York Supreme Court considered the first serious challenge to the admissibility of DNA evidence.8 Although the case never went to trial, the

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New York Supreme Court’s holdings after a pretrial hearing immediately influenced how the issue was considered by other states.9 In particular, the New York Supreme Court proposed a three-prong analysis with which to evaluate and resolve the complex issues involved. The first two prongs of the analysis were intended to determine if the scientific evidence to be presented passed the Frye standard.10 Also known as the “general acceptance” standard, the Frye standard requires that the expert testimony courts admit is deduced from a well-recognized scientific principle or discovery, one which is itself “sufficiently established to have gained general acceptance in the particular field in which it belongs.”11 As noted by critics of Frye v. United States (1923), this standard means that what legitimates scientific evidence in courts of law is its approval by the scientific community, not its sanction by the legal one.12 In 1989, however, the New York Supreme Court was concerned only that by focusing on the general acceptance issue, the Frye standard for the admissibility of scientific evidence does not require courts to consider the actual use of theory and technique in a particular instance. Consequently, the third prong of the analysis the Supreme Court called for requires a pretrial hearing on the question of the admissibility of the particular evidence presented in a case. That question is answered by determining if the testing laboratory properly performed accepted scientific techniques in analyzing the forensic samples. When DNA testing procedures are properly followed, there are three possible results or conclusions to present to a jury.13 The first is a “match” obtained when the results of a test of cells from an unknown source are all consistent with, or all present in, the results of a test of cells from a known source. A match is more properly known as an inclusion or, more properly still, as a nonexclusion, as the probative value of DNA information is directly related to the frequency of a given DNA profile in the population.14 Biology professor Julian Adams observes that when prosecutors present a “match” they are tempted to tell the jury that there is only a one in a million chance the defendant is innocent.15 To be accurate, prosecutors should tell the jury that there is one chance in a million that a particular DNA profile could also match another person, as well as the person being held. The second possible result from a DNA test is an exclusion. Exclusions are, for obvious reasons, stronger than inclusions. When the results obtained from testing an unknown source’s cells are not all consistent with,

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or all present in, the results obtained from testing the cells from a known source, the result is definitive: the two sources are not the same. Finally, the result from a DNA test may be inconclusive. An inconclusive result may be due to the limited amount of suitable human DNA available for the test or to the absence of a sample from a known source with which to compare the results. Of course, the result from a DNA test, whatever it is, may not be significant in the context of a particular case. In a sexual assault case, for example, the defendant’s DNA might “match” the DNA from a sample obtained from the body of the victim, but that does not necessarily prove the victim was raped. The prosecution still has to argue that any sexual intercourse was not consensual. This example itself demonstrates the strength of an exclusion, however, for if the defendant’s DNA does not match the DNA from the sample, the prosecutor has an even more difficult argument to make. To prove that the defendant is guilty of having committed a crime, she has to prove to a jury that the defendant wore a condom (which was not found at the scene of the crime) or that he participated in the sexual assault on the victim in some other way. While such arguments are difficult to make compelling, particularly when the available DNA evidence supports the defendant’s claim of innocence, prosecutors will, nevertheless, try. In Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, a book that chronicles the origins and early triumphs of the Innocence Project, Peter Neufeld and Barry Scheck, with Jim Dwyer, write about the case of Robert Miller.16 Miller was found guilty of raping and killing two elderly women and was sentenced to two death penalties plus 725 years. On appeal, DNA testing of the evidence excluded Miller as the rapist of either woman. Nevertheless, the district attorney’s office continued to insist that Miller was responsible for the murders. As the Assistant District Attorney, Ray Elliott, publicly observed, “The DNA tests have proven only one thing, that is, that Robert Lee Miller Jr. was not the donor of the semen left at the crime scene. The DNA tests do not prove that Mr. Miller was not present during the commission of these crimes. The DNA tests do not prove that Mr. Miller did not commit murder.”17 When another man was implicated in the crimes, however, Elliot still would not concede that Miller was innocent, going so far as to argue that Miller had been the other man’s lookout.18 Although a videotaped “confes-

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sion” was the only evidence left with which to make a case against him, Miller was eventually granted a second trial. According to Neufeld and Scheck, it was only when the other suspect in the crime refused to finger Miller and it became clear that Miller’s confession was profoundly flawed that the district attorney’s office finally dropped all charges against him. In fact, it is relatively unusual for DNA to play such a significant role in exonerating people on death row. According to the Death Penalty Information Center in 2007, of the 124 people freed from death row since 1973, DNA was a factor in only fifteen cases.19 Nevertheless, DNA has had a profound impact, some say revolutionary, on the criminal justice system, and the system of capital punishment in particular. Law professor Larry Marshall is one of those who claim that that the U.S. criminal justice system is in the midst of a revolution spawned by the advent of forensic DNA testing. According to Marshall: This revolution is quite different from those that preceded it. The Warren Court’s “rights revolution” was based on a controversial set of value judgments pursuant to constitutional values of autonomy, integrity, and respect for the individual, which trumped, in some instances, the interests in accurately prosecuting criminal actors. Given the nature of these value judgments, it is not overly surprising that the Burger and Rehnquist Courts—courts with value systems quite different from the Warren Court’s—have scaled back many of these decisions. The innocence revolution is quite different, as it addresses a value that everyone shares: accurate determinations of guilt and innocence. Put another way, the innocence revolution is born of science and fact, as opposed to choices among a competing set of controversial values. The revolution has just begun, and it is far too early to reach definitive conclusions about how dramatically it will transform criminal justice. Nonetheless, it is safe to conclude that our newfound appreciation of the system’s fallibility is destined to leave a lasting mark on criminal law.20

Marshall attributes the innocence revolution to “science and fact,” which he identifies with a value that is distinguished from all others. Unlike other values previously held in high esteem by the courts—values such as autonomy, integrity, and respect for the individual—“science and fact” constitute a value that is universally recognized and respected. Consequently, time, and the changes that are wrought on the Supreme Court by the passage of time (i.e., changes in personnel), will not affect decisions made by the Court based on this value.

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II. “A Gold Standard for Truth Telling” I quote Marshall’s description of the innocence revolution at some length because it explicitly identifies DNA and DNA technology with a value that legitimates legal decisions in a completely new way, a way that is identified with science. That the scientific character of DNA allows it to play this role in the criminal justice system is broadly recognized. Neufeld and Scheck state plainly that DNA testing derives its power as “a gold standard for truth telling” from its scientific ethos.21 In a 1999 research report on recommendations for handling requests for postconviction DNA tests, the National Commission on the Future of DNA Evidence similarly observes that DNA technology makes such a high level of certainty possible that the legal system has to recognize “the decision to oppose or not oppose a motion requesting postconviction relief may now be based on a different foundation of knowledge.”22 According to the National Commission on the Future of DNA Evidence, DNA technology reflects a new way of thinking about familiar things, a way that permits us to draw conclusions with unprecedented confidence about the truth of what we proclaim. In brief, we may avoid having to make what Marshall refers to as “choices among a competing set of controversial values” because the ground on which a convicted murderer might petition for his conviction to be reconsidered and possibly overturned is no longer subjective. Predictably, then, many of the recommendations made by the Commission (and other institutions and individuals concerned about the effect of DNA evidence on the criminal justice system) suggest that prosecutors, defense attorneys, and the judiciary educate themselves about the science so that they may recognize when a case is suited for DNA testing, evaluate what testing has already taken place, search for additional evidence, and consider the implications of any results.23 To understand the role that DNA plays in the criminal justice system, it is important to note that the universal appreciation for the value of science assumed here may be attributed to our confidence in assertions based on the investigation and manipulation of observable phenomena. Any disagreements that arise may be rationally and reliably resolved for everyone; we need only refine our techniques of observation, reformulate the questions that generate conflict, and/or repeat controversial experiments. And this is important to observe because what it means is that

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when we can know things in the apparent world with such certainty, we no longer need to look to the real world for truth. Marshall and his colleagues eschew the abstract, impractical, and intangible qualities of real world claims in favor of rationality, objectivity, and “realism.”24 In effect, they abolish the real world. It is somewhat ironic but also perhaps predictable, then, that one of the most certain outcomes of the “innocence revolution” is skepticism about any claim to infallibility. The lawyers most responsible for starting the innocence revolution agree that this is its most significant effect. While Neufeld and Scheck argue that the revelations made possible by DNA tests transcend all other arguments about the death penalty and that DNA renders concrete otherwise abstract arguments about the purpose of punishment and the inequitable distribution of death sentences, they claim that the most important thing DNA proves is that the human capacity to make mistakes is real. In Actual Innocence, they observe: Over the years, debate about the current death penalty scheme in the United States has covered its costs, inequities, usefulness as a deterrent, and the fundamental moral issue of retribution. Layered and sophisticated, the arguments can be ignored by no serious person. Yet the revelations of the DNA era transcend them. No less than someone accused of a barroom brawl or gas-station stickup, the person charged with capital murder faces a system that relies on eyewitnesses, confessions, forensic experts, snitches, defense lawyers, prosecutors, and police officers. Historically, the fallibility of these parties has been given lip service, then ignored in the backwash of emotion that follows a terrible killing. Now, with DNA, it is possible to see that these errors, rising from human nature, are not abstractions but authentic sources of torment to those falsely accused and wrongly convicted.25

In brief, Neufeld and Scheck claim that, with DNA, misidentifications and misunderstandings can be identified as such. With DNA testing, human fallibility is authenticated. Human susceptibility to err is made apparent.

III. Issues and Consequences Increased awareness of the significance of DNA, and of the privileged status of conclusions based on DNA testing, has several consequences for the criminal justice system in the United States. First, and most predictably,

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it raises a number of new, properly legal issues. These issues require courts to establish, among other things, whether there is a constitutional right to DNA testing, before or after conviction, and, if there is, to indicate the circumstances under which such a right may be exercised.26 In addition, DNA and DNA testing have given rise to heated conversation about the use and abuse of DNA technology in the criminal trial setting. This conversation revisits topics familiar from earlier power struggles in courts of law between scientific and juridical conceptions of truth. One well-known set of topics has to do with expert testimony.27 Scientists must be introduced into courtrooms as expert witnesses to explain and testify on matters about which the lay people on a jury will not be knowledgeable. However, confronted with the complexities of the technology involved, lay people often do not feel competent to consider for themselves the underlying issues. Indeed, as the Commission’s recommendations noted above suggest, it isn’t clear that prosecutors, defense attorneys, and the judiciary itself may not also be so intimidated by the new DNA science that they are unable to use or critically evaluate it. Yet as everyone becomes more educated about the science involved in DNA testing, other kinds of issues affecting the criminal justice system arise. First, people develop unrealistic expectations of DNA technology. Suffering from what is known as the “CSI effect” after the popular television show CSI: Crime Scene Investigation, jurors are said to assume that the technology they see on TV is available and should be used at every crime scene. In a newspaper article about the CSI effect, Jamie Stockwell writes that a jury in Maryland refused to convict a man accused of stabbing his girlfriend to death because a half-eaten hamburger, recovered from the crime scene and assumed to be the killer’s, was not tested for DNA.28 A second set of issues resulting from the public’s increased awareness of DNA science at law is that the lay people on juries expect there to be forensic evidence at every crime scene. More often than not, and particularly in capital cases as noted above, forensic evidence doesn’t exist. Without it, however, jurors are said to be reluctant to convict. Commentators on the Robert Blake murder trial, for example, argue that the actor was acquitted because jurors assumed that if he had fired the murder weapon, an old Nazi-era pistol, there would be gunshot residue on his skin and clothes.29 A juror apparently said that if the prosecutor had had that information, “that would have meant that he was guilty.”30 The juror implies

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that the determination of the defendant’s innocence or guilt depended entirely upon the presence or absence of a certain kind of information. No other kind of evidence was considered relevant to the question. Commenting on the faith people put in this kind of information, James Liebman notes the parallels between DNA exonerations and divine intervention. Like acts of God, DNA exonerations cannot be taken for granted. They are based on something appearing as if out of nowhere, that is uniquely capable of lifting the scales from the eyes of those who have assembled to pass judgment on one of their fellow citizens.31 Invisibly present at the scene of a crime, when it is revealed DNA shows us what we cannot see, throwing into disarray all the legal regulations and conventions that have guided (and protected) us as we make or review the decision to send a man to his death.32 Unlike (the majority of ) exonerations realized by the hard work of appellate lawyers, then, exonerations brought about by the late discovery or testing of DNA evidence are due to sheer happenstance—the serendipity of biological evidence in the kind of case where biological evidence does not often exist, the lucky break that this evidence was discovered and preserved, the good fortune that procedures were available (and widely accepted in the scientific community) to test it and make it meaningful. Thus, an innocent person is released from death row not because of our ability to find and correct flaws in the system but because of a fluke that looks like fate.33 How DNA comes to appear in a legal setting tends to highlight the many characteristics of DNA we associate with a divine or eternal being.34 Like the Christian soul, DNA is invisible but present in this world. Independent of the body, it seems immortal for, as the body decays, it continues to exist. Again like the soul, DNA explains the uniqueness of a person. It provides a record or portrait of the individual’s past, as well as insight into her destiny. It is a discovery of science, but it is also more. It seems fitting, then, that in their demystification of all (human) claims to certainty, Neufeld and Scheck end up consecrating the information provided by DNA. In the passage cited above, Neufeld and Scheck suggest that what was once necessarily a matter of perception or perspective—the sighting of a defendant near the scene of a crime or the confession of guilt to a snitch in a prison cell—may now be validated (or invalidated) by science. Most importantly, they imply that from the standpoint of DNA it is possible to survey a (crime) scene and perceive what is

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true without what Plato in the “Phaedo” calls the “distractions” provided by the eyes and ears that hinder the acquisition of the knowledge of true being.35 Of course, the practice of science itself is really no more or less dependent on the “distracting elements” than any other human enterprise. As Sheila Jasanoff observes in Science at the Bar, science is set apart from all other social activities only by its institutionalized procedures for overcoming particularity.36 But, like others in the field, Neufeld and Scheck do not see this as a problem and are unabashed in expressing their enthusiasm for forensic science. They admit that it “has yet to achieve the status of an independent third force, unbeholden to prosecutors or defense lawyers,” but they have complete faith in the work of a “truly independent forensic science community, fostered in institutions that carry out only scientific agendas.”37 Similarly, the National Research Council says that the adequacy of laboratory procedures and the competence of the experts who testify should always remain open to inquiry, but it doesn’t take issue with the fact that “There is no substantial dispute about the underlying scientific principles.”38 Even those commentators who, like Craig Cooley, emphasize that “legitimate science” is humble and thrives by detecting errors and the shortcomings of asserted hypotheses, and who criticize forensic science for pretending to a scientific status it does not have, argue that forensic science has the potential to detect and correct its own mistakes.39 This is the significant potential that sets DNA evidence above all other evidence in capital trials. For what distinguishes DNA from other grounds for truth claims presented in court is that DNA provides not only the evidence that is to be judged but also the standard by which that evidence is to be judged. As Neufeld and Scheck remark, DNA testing permits one to see errors that previously only existed theoretically. This is because, unlike any other evidence in court, DNA tests definitively prove that the claims supported by other evidence are not true. Thus, what is asserted on the basis of DNA evidence is ultimately validated by the surety of DNA testing. What is more, both the evidence and the results of DNA tests are manifest in this world, the apparent world. Consequently, DNA effectively may be used to verify its own truth claims without having to resort to abstractions or having to make a choice between a competing set of controversial values.

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With the development of new procedures and techniques that make DNA more useful in legal cases, in the legal system, DNA has come to be seen as the arbiter of truth because DNA proves our fallibility with a unique degree of certainty, a certainty based on a new kind of knowledge. This new kind of knowledge is scientific, which means that it is based on observation and experiment in this world, the apparent world. At the same time this knowledge has, for all intents and purposes, divine properties. It is appropriate, then, that DNA evidence can be definitive in a way that no other evidence can. We might think that, by providing such a standard for determining what is true, DNA testing solves the problem of the arbitrariness of the capital punishment system. Indeed, DNA testing does have consequences for the practice of judgment. However, if DNA testing solves the problem of arbitrariness, it does not do so by providing decision makers with a means for assessing the validity of the evidence presented or by producing more accurate information about the matters they must consider. Rather, DNA alters the metaphysics of decision making. When we examine various responses to DNA testing, we can see how.

IV. The Decision (Not) to Decide On January 11, 2003, in a speech at Northwestern University College of Law, Governor Ryan announced his decision to commute the sentences of all death row inmates in Illinois. In his speech he acknowledges that it will be controversial and that many will argue he is infringing on the authority of judges and juries and state legislators. To assuage his critics, Governor Ryan emphasizes in his speech that the Illinois state constitution provides broad power to the governor to issue reprieves, pardons, and commutations. He also points out that the U.S. Supreme Court recognizes this power and has reminded death row inmates that the last resort for relief is not the Court but the governor. Governor Ryan is obviously concerned that his decision will be criticized for being without legal warrant. Nevertheless, after reviewing the shortcomings of Illinois’s death penalty system and the failure of the General Assembly to help him fix it, Governor Ryan proclaims:

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Chapter 6 The legislature couldn’t reform it. Lawmakers won’t repeal it. But I will not stand for it. I must act.40

The role that DNA plays in the governor’s decision to act is never acknowledged in the governor’s speech. In fact, the governor says that once he started looking at the issue of capital punishment, his concern about innocence came to take a backseat to his concern about fairness. As DNA testing is obviously more immediately helpful in addressing issues of innocence and guilt than in determining what convicted murderers deserve as punishment, the governor presumably gave DNA and DNA technology little thought once he started focusing on the integrity of the death penalty system. Yet, at the end of his speech, the governor justifies his decision to commute the death sentences of all of Illinois’s death row inmates in terms not of fairness but of human fallibility: “Our capital system is haunted by the demon of error, error in determining guilt, and error in determining who among the guilty deserves to die.” Explaining his decision, the governor does not refer to a principle of justice, equity, or impartiality. Instead, he uses language that implies a standard of truth or accuracy that the capital system fails to uphold. From ignorance or lack of due diligence, when one commits an “error” one fails to choose the correct answer or course of action. According to Governor Ryan, in the capital system we constantly choose wrong.41 This can be the case only if, whether we recognize it or not, an objective standard applies to the determinations we make about guilt and about what the guilty deserve as punishment. Of course, it comes as no surprise that human beings make mistakes. However, new DNA tests make it possible—and finally, necessary—for the governor to appreciate the fallibility of all the different kinds of evidence on which a capital case may be based. Indeed, since DNA technology was first used in the United States to exonerate a man falsely accused of rape, the number of people exonerated for crimes they did not commit has increased dramatically.42 This is not a coincidence. In a study of exonerations between 1989 and 2003 headed by law professor Samuel Gross, the sudden increase in the number of exonerations since 1989 is attributed to three interrelated trends.43 The first among them is the growing availability and sophistication of DNA identification technology. This technology has,

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predictably, produced an increase in DNA exonerations over time. However, Gross and his colleagues suggest that this technology has contributed in additional, subtler ways to the number of exonerations reported. According to Gross and his colleagues, the DNA revolution has made exonerations increasingly newsworthy. Consequently, we are aware of a higher proportion of the exonerations that have recently occurred than of those that have occurred in the distant past. This increase in attention has led in turn to an increase in the number of false convictions that do come to light and end in exonerations by DNA or other means. In sum, because of new DNA identification technology, we are more aware of the danger of false convictions and, consequently, we devote more resources to the problem. While DNA, as we have noted before, is not available in every case, indeed is not available in most capital cases, empirical proof of human fallibility has had a profound effect on the perceived reliability of the capital punishment system.44 In this context, it does not seem so surprising that on the eve of his departure from office, Governor Ryan pardons four men outright, commutes the sentences of three men to terms in line with those of their codefendants, and sentences the rest to life in prison. What is striking about the governor’s decisions is how he characterizes them. In an extended analysis of Governor Ryan’s speech, Austin Sarat points out that the governor tells two stories—one about victims and their suffering, the other about institutions and their failures.45According to Sarat, these two stories are supposed to ground and authorize Governor Ryan’s acts, thereby satisfying “our need for, and yet discomfort with, the sovereign prerogative of mercy and power to spare life.”46 Despite the fact that the power to grant clemency is explicitly given to the executive in the Constitution, Sarat argues that this power sits uneasily with America’s commitment to the rule of law and law’s promise to establish “a government of law not of men.”47 This power presents the specter of “unchecked and uncheckable will” and, even when exercised to show mercy, reminds us that sovereign might does not belong to the juridical order. While the separation of powers makes executive clemency part of a received constitutional schema, it does not completely contain this power. Rather, on the contrary, the separation of powers inscribes within the law “a power above the law.”48 When an executive uses this power to exempt a legally held person from the punishment legally

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imposed on her, he does so by distinguishing between her case and every other to which the law applies, thereby making the distinction he sees into a distinction of such significance that the law does not pertain. What is exceptional cannot be settled in advance, precisely because it is an exception. So the exercise of power that remarks this exceptionality cannot be constrained by laws that would determine in advance what the exercise of power will recognize as an exception. In brief, the power to grant clemency lies both inside and outside the law. It is an exemplary instance of what Sarat calls “lawful lawlessness.”49 This discussion raises the subtle and complicated issue of the relationship between legal and political decision making. I will not take up this topic here except to say that this issue has been in the background of the entire book, coming forward only at this stage in the history of American capital punishment jurisprudence when the real world has been abolished and with it the actual world as well. It is as if we can keep judgment in law and politics separate until this moment when even the actual world cannot be secured somehow, and all our efforts to settle on some manner of truth and being with which to validate our judgment appear fruitless. This impression is only strengthened when we consider one of Governor Ryan’s justifications for acting. After noting in his speech that Illinois’s constitution provides broad power to the governor to issue reprieves, pardons, and commutations, the governor adds, “Our Supreme Court has reminded inmates petitioning them that the last resort for relief is the governor.”50 Important in this regard is the Court’s ruling in Herrera v. Collins (1993). In Herrera, the Supreme Court holds that a claim of actual innocence does not entitle a person to federal habeas relief. According to the Court, the purpose of federal habeas courts is to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact. In addition, the Court finds that execution of innocents does not offend some fundamental principle of justice. As this is the case, there is no reason for federal habeas courts to hear claims of actual innocence. Such claims need not go unaddressed, however. According to the Court, a forum exists for raising claims of actual innocence: clemency. The Court acknowledges that judicial systems are fallible. However, it also observes that the historic remedy for preventing miscarriages of justice has been clemency. Indeed, the Court says, “Executive clemency has provided the ‘fail safe’ in our criminal justice system.”51 In light of Herrera, it is difficult

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to distinguish between political and legal decisions pertaining to sentencing, particularly in capital cases. In a dissenting opinion, Justice Harry Blackmun remarks on this confusion of political and legal decisions. Arguing that the possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments, he complains that executive clemency is “an act of grace” rather than a properly legal forum in which to vindicate rights guaranteed by the Constitution.52 However, it appears that the Supreme Court in Herrera is ultimately interested in definitiveness more than anything else. At the end of the majority opinion, it admits that there could be a “truly persuasive demonstration of ‘actual innocence’ ” that would warrant federal habeas relief if a state avenue were open to process the claim. However, it refuses to clarify what such a demonstration might look like because entertaining claims of actual innocence would place an enormous burden on the states and “because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases.”53 Returning, then, to Governor Ryan’s characterization of his pardons, I am less interested in the way his rhetoric reveals our ambivalence about the sovereign prerogative of mercy and power to spare life than I am in the way it reveals how we manage this ambivalence. For at every stage of the history of American capital punishment jurisprudence, we handle this ambivalence differently. We handle it differently because at every stage our metaphysical assumptions equip us to address the problem of judgment in different ways. The moment of Governor Ryan’s dramatic speech corresponds with the sixth stage of Nietzsche’s history of metaphysics. This is a stage with seemingly few resources to encourage or inspire us. 6. We have abolished the real world; what world is left? the apparent world perhaps? . . . But no! with the real world we have also abolished the apparent world! (Mid-day: moment of the shortest shadow; end of the longest error; zenith of mankind; INCIPIT ZARATHUSTRA)54

At this stage, no appeal to the real world can authorize a claim made on or for us. All that we have left is the apparent world. We engage this world with our senses, gathering the experiences and collecting the data with which we validate our judgments. However, the existence of this world is difficult to affirm. Indeed, at the sixth stage, we realize that when we

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abolish the real world, the apparent world is abolished as well, for it is only in relation to the real world that the apparent world “is” as such. In response to this insight, we may give up. That is to say, it may occur to us that nothing is certain except for the certainty of nothing itself. When new DNA tests make it possible—and finally, necessary—for the governor to appreciate the fallibility of all the different kinds of evidence on which a capital case may be based, I suggest this is his response. He decides to commute the sentences of all the people on Illinois’s death row because he cannot be certain, and he prefers to be certain and do nothing than be uncertain and act. By virtue of his position, his decision may appear to be sovereign, but his action is nihilistic. Consider again how the governor characterizes his action. Governor Ryan characterizes his decision as a “blanket commutation.” That is to say, he does not determine what each person on death row deserves as punishment for the crime for which he or she has been found guilty. Nor does he try to determine who is actually innocent of the crimes for which he or she has been found guilty, despite the fact that his sources indicate that, in addition to the four he set free, there may be others who were falsely convicted.55 He reviews each case, but after correcting what he identifies as the most obvious mistakes made by the system, the governor declines to intervene more specifically. In effect, the governor declines to judge. In his own words, “Because our three year study has found only more questions about the fairness of the sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious—and therefore immoral—I no longer shall tinker with the machinery of death.”56 Thus, as I read it, the blanket commutation Governor Ryan grants to the inmates on Illinois’s death row is not an act of moral generosity or sovereign power but, on the contrary, an act of resignation. The governor has tried and failed to master the Illinois death penalty system. Despite his best efforts, questions about the fairness of sentencing continue to emerge, lawmakers ignore his call to reform the system, and courts refuse to reconsider cases he would have them review. Then, when he reviews these cases himself, he does not have the means to ascertain what is “right.” Consequently, when he says at the end of his speech that “I no longer shall tinker

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with the machinery of death,” I do not take him to be acceding to the value of science so much as acknowledging the futility of his faith in science. For the truth that leads the governor to critically evaluate the death penalty system in the first place cannot help him save it. In brief, I see the governor’s demand for certainty giving way to disillusionment, mistrust, and the belief that everything that happens in the capital punishment system is open to suspicion or, worse yet, is meaningless. The governor has struggled in vain to make the system work. When he confronts “the long waste of strength, the agony of the ‘in vain,’ insecurity, the lack of any opportunity to recover and to regain composure,” he decides to commute the sentences of everyone on Illinois’s death row.57 This decision is not heroic; it is nihilistic. In effect, the governor radically rejects or abdicates responsibility for making a choice under the imperfect conditions of human life. What do I mean by calling this decision nihilistic? After all, Governor Ryan does not seek to destroy or willfully devastate the criminal justice system. On the contrary, the governor may act with the intention to preserve the legitimacy of that system.58 Nor does he give up entirely the belief that there is any truth at all. What I mean is that Governor Ryan simply refuses to form an opinion or make a judgment in the absence of full information. Because he cannot decide with certainty, he decides not to decide. Persuaded by a three-year study that the Illinois death penalty system is arbitrary and capricious and convinced by his political experience that the system cannot be fixed, he abdicates the responsibility to make difficult choices. He has to reject the sentencing decisions reached by others in the past, but there is no satisfactory evidence with which to definitively establish the innocence of those who have been condemned. One person’s declaration of what happened at the scene of a crime, or what a convicted person deserves as punishment, is as compelling as another’s. Thus, he cannot judge what is right in each case. He can only move Illinois’s death row inmates out of immediate harm’s way. The governor may be relieved to give up the task of critically engaging and evaluating matters for which the truth, as he understands it, is not immediately at hand. However, the belief that the truth could be at hand, even if it is not immediately available, betrays another nihilistic dimension of Governor Ryan’s decision.

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To explain this dimension of Governor Ryan’s decision, it is necessary to recall the earlier analogy between DNA and the soul. As this analogy suggests, the truth embodied by DNA does not become; it always already is. Faith in a truth that always already exists at the heart of nature, in the genetic material present in the nucleus of cells in living organisms, makes what is revealed by molecular biologists appear always already there, waiting to be called forth and harnessed for some human purpose. In their experiments, scientists simply challenge this truth to present itself. The logical extreme of this challenging and instrumental orientation toward the world is to encounter nature as a docile resource awaiting exploitation. This is “standing-reserve.” According to Martin Heidegger, “The word expresses here something more, and something more essential, than mere ‘stock.’ The name ‘standing-reserve’ assumes the rank of an inclusive rubric. It designates nothing less than the way in which everything presences that is wrought upon by the challenging revealing. Whatever stands by in the sense of standing-reserve no longer stands over against us as object.”59 Whatever stands by in the sense of standing-reserve, Heidegger says, is no longer perceived as something toward which thought, feeling, or action is directed. That which is called forth by challenging revealing is not imagined to have (ever) been the goal or end of an effort or activity. Thus, we do not understand ourselves to be in any way involved or engaged with it.60 It is simply already there, standing by, and waiting only to be called forth for further ordering. The project of transforming nature into “standing-reserve” makes manifest a limitless will to put the apparent world at our disposal. However, it also expresses a demand for certainty, a demand that something should stand still.61 Fear informs this approach to nature, fear that when the world is in flux there is no way to distinguish between claims to truth and ultimately that there is no such thing as “knowing.”62 Thus, to the extent that Governor Ryan cannot decide without truth as he understands it standing by, I think Governor Ryan’s decision to grant a blanket commutation betrays what Nietzsche describes as an “instinct of weakness.”63 An instinct of weakness demands that something should be firm, stable, and certain. This is a nihilistic demand, for it is willing to do anything for order, clarity, and incontestability.

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V. Significance for Death Penalty Trials It is not obvious what all this signifies for the future of capital punishment in the United States. Many opponents of capital punishment and some legal scholars claim that the scientific demonstration of systematic problems in capital cases by the grace of DNA means the end of executions in this country. Ronald Tabak, for example, claims that because of DNA evidence, the public is coming to realize that the death penalty is not a legal or criminological policy issue but a political one.64 Because, as DNA evidence shows, mistakes are inevitable, Tabak believes people will begin to ask themselves questions about how much risk of error is tolerable and why degrees of risk that are tolerable enough to go unnoted in noncapital cases are so disturbing in capital cases. Such questions are not essentially concerned with the efficacy of the system or with improving its performance but with questions of fairness. Public discussion of the death penalty that focuses less on deterrence and more on retribution or revenge reflects this shift in emphasis and ultimately reinforces the argument for a moratorium. This is the case, Tabak says, as every demonstration of the factual innocence of a person condemned to die undermines the logic of a system based on just deserts and reveals that the whole debate about capital punishment can really only be about our tolerance for risk of error in life and death matters.65 Other legal scholars take issue with Tabak’s argument about the impact of DNA testing on the viability of capital punishment in the United States. From the same evidence of systematic problems in the capital punishment system these scholars draw an opposite conclusion: they argue DNA testing will lead to more, not less, support for the death penalty in the long run. According to law professor John Wefing, for instance, the fact that DNA proves there have been errors in capital cases simply means that the burden of proof in cases without DNA evidence will become more onerous for the prosecution.66 Jurors will seek the kind of certitude that DNA evidence offers before they condemn a person in a death penalty case; without evidence that provides that kind of certitude, jurors will hesitate to impose capital punishment. However, in cases where DNA testing supports guilt during the trial phase, Wefing predicts that it will be difficult to argue against the death penalty.67 Because of the putative capacity of

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DNA evidence to establish guilt definitively, jurors may ignore the feelings of compassion they are supposed to consult when called on to judge a particular criminal. Citing work done by William J. Bowers, Wefing suggests that jurors in capital cases are already prone to make their punishment decisions prematurely, that is to say, well before the sentencing phase of the trial.68 When jurors decide the fate of a defendant whom they have determined is guilty on the basis of DNA evidence, the distinction between a defendant’s guilt and “deathworthiness” may easily be further obscured.69 Neither of these conventional arguments about the impact of DNA on capital punishment focuses on the impact of DNA on judgment, of course, although Wefing tacitly acknowledges such an effect when he cites an argument by Phyllis Crocker. In an article on sentencing decisions in death penalty cases, Crocker observes that “the distinction between a defendant’s guilt and deathworthiness is so often obscured that defendants who are not worthy of the death penalty are frequently sentenced to die in violation of the Eighth Amendment.”70 Crocker suggests here that evidence used to answer factual questions of guilt and innocence is inappropriately used to answer moral questions of desert. But beyond remarking that judges and juries may conflate these matters when DNA evidence is presented by the prosecution, Wefing does not comment on Crocker’s claim. Specifically, he does not consider what this conflation says about the practice of judgment itself. Failing to observe the (passive) nihilism of the decisions they describe, Tabak and Wefing cannot appreciate the potential for an alternative, active form of nihilism to emerge from the advent of DNA and DNA testing in capital trials. For admitting to ourselves that we cannot trust any evidence to be the truth, we may be doing one of two things. We may be demonstrating what Nietzsche calls a “decline of the power of the spirit,” a gradual but stubborn retreat from the challenge of commanding the “goals” or “tasks” of life.71 I have argued that such a decline is generally manifest in discussion of the possibility, or more precisely the impossibility, of judgment in capital cases today. Alternatively, however, we may be signaling an increase of the power of spirit. To the extent that we are willing and able to deny the existence of a (super)human authority that unconditionally dictates the goals and tasks of life, and maintain ourselves “on insubstantial ropes and possibilities” instead of firm ground, we practice active nihilism.72 Nietzsche describes active nihilism as a divine way of

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thinking.73 I take this to mean that active nihilism is a way of thinking that joyfully posits truth in the world rather than challenging truth to present itself as such in unconcealment. One wills a goal and takes the risk of begging the question “Why?” without being able to refer or defer to an absolute or truth for a compelling answer. According to Nietzsche, such a liberated, autonomous spirit takes leave of every wish for certainty, “dancing even near abysses.” Unwittingly, Tabak touches on the possibility of such a spirit when he suggests that the debate about capital punishment is really about risk. Tabak recognizes that when absolute certainty about guilt and innocence, let alone punishment, is unlikely, we revalue our criminal justice system. That is to say, he understands our pessimism about the rationality of the system, and our willingness to stop telling ourselves lies about it, as an occasion to assert new values, in particular the values of fairness and retribution. However, Tabak does not grasp the full import of this occasion. According to his own argument, fairness and retribution become the focus of public discussion of the death penalty when the arbitrariness of the capital punishment system is demonstrated. Yet, despite the fact that our bestlaid plans for prosecuting and punishing the criminals who commit the most severe crimes in our society are shown to rest on shaky foundations, Tabak clings to the idea of “error,” claiming that it is fear of making a mistake or acting on a false finding that will ultimately stop people from supporting capital punishment in this country. In this way, while he may acknowledge that objective truth is nothing more than fools’ gold, he still maintains that no other value can compete with it. Steering clear of any abysses, judgment remains for him an exercise in stating the truth that is revealed to the judge as always already at hand. The advent of DNA and DNA testing in capital trials could, however, move us to reconsider the value of this gold. To begin doing so, we might start by rethinking the notion of “error” and “truth,” which is at the base of the passive response to DNA evidence. Recall the earlier observation that DNA can render the real world superfluous, keeping in mind this time that science is not itself a site of certainty. Most who practice science are well aware that it is not impervious to the material and social conditions of its undertaking. For instance, in The Doctrine of DNA: Biology as Ideology, Richard Lewontin observes that “what appears to us in the mystical guise of pure science and objective knowledge about nature turns out,

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underneath, to be political, economic, and social ideology.”74 As we rethink the notion of “truth” and “error” that has been brought to bear in death penalty cases via the figure of DNA, Lewontin’s observations are particularly helpful because he sees no need to try to remedy the situation he demystifies. On the contrary, Lewontin sees the interdependence between science (“truth”) and society (“error”) as a reflection of the intrinsically dynamic and open nature of the object of scientific inquiry. Thus, in The Triple Helix, Lewontin suggests: Rather than searching for radically different ways of studying organisms or for new laws of nature that will be manifest in living beings, what biology needs to do to fulfill its program of understanding and manipulation is to take seriously what we already know to be true. It is not new principles that we need but a willingness to accept the consequences of the fact that biological systems occupy a different region of the space of physical relations than do simpler physico-chemical systems, a region in which the objects are characterized, first, by a very great internal physical and chemical heterogeneity and, second, by a dynamic exchange between processes internal to the objects and the world outside of them. That is, organisms are internally heterogeneous open systems.75

Here, Lewontin argues that scientists must work with what they already know to be the case: organisms are always engaged in relations with their environment that affect not only the varied processes internal to them but the world in which they live. Like science itself, an organism cannot be extracted from the context to which it contributes and from which it draws support. In brief, Lewontin recommends that scientists get over the Ideal—of science, of the organism—and get on with their work. This account of biology undermines the distinction between how things appear to us and how they really are. Indeed, Lewontin calls for us to abolish the real world, the world of what is eternally fixed, certain, and true, because it interferes with understanding and manipulating the world in which we live. However, we continue to operate in this world with the notion that we are entangled in error. Instead of taking what we perceive at face value, we still blame our senses for calling into question unity, identity, duration, substance, cause, materiality, being.76 This is an old habit and a hard one to break because we have experienced the apparent world in opposition to the real world for so long. To cure ourselves of this habit, we have to do as Lewontin suggests and take seriously what we already know to be true. That is to say, we have to take seriously the notion that,

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in so far as the senses show becoming, passing away, and change, they do not lie. Instead of speaking of discrete and regular organisms coexisting in a stable environment, Lewontin speaks of a space of physical relations and of systems in that space that are characterized by multifarious internal processes and dynamic exchanges with the external world. We might speak of trials in which evidence of guilt and innocence and desert is similarly fluid, complex, and subtle. For this is, indeed, what we already know to be true. In what sense, however, may we refer to “what we already know to be true” now? Drawing from Nietzsche, I suggest that “knowledge” and “truth” must mean something different. A world in a state of becoming cannot be known or comprehended in any conventional way. In particular, it cannot be approached as a docile nature and ready resource awaiting further ordering. To take seriously what we already know to be true is, thus, to do something very different from what I have described Governor Ryan doing. Taking seriously what we already know to be true is to act affirmatively and without apology for the status of this act as an interpretation rather than a statement of truth. Interpretation is the introduction of meaning.77 Those who never want to assume the risk or responsibility for positing meaning for themselves may accept fatalism, the feeling of valuelessness reached when the overall character of existence cannot be interpreted by means of the concept of “truth.” However, Nietzsche suggests, if the world is not “truthful,” it may become more valuable to us when we stop telling ourselves old “tales” about its truth value and start telling “lies” in a new way.78 By transforming the practice of judgment in capital cases, I suggest, DNA and DNA technology may open up this possibility for us.

7 The Experience of Judgment To stay cheerful when involved in a gloomy and exceedingly responsible business is no inconsiderable art: yet what could be more necessary than cheerfulness? Nothing succeeds in which high spirits play no part. Only excess of strength is proof of strength. —A revaluation of all values, this question mark so black, so huge it casts a shadow over him who sets it up—such a destiny of a task compels one every instant to run into the sunshine so as to shake off a seriousness grown all too oppressive. —Friedrich Nietzsche, Twilight of the Idols

According to the philosophy of retributivism, one may be punished because, and only because, one deserves punishment. With its ruling in Furman v. Georgia (1972), the Supreme Court of the United States subscribes to this philosophy, both explicitly and metaphysically.1 In my reflections on the Supreme Court’s death penalty jurisprudence since Furman, I have emphasized the metaphysical significance of the Court’s endorsement of this philosophy of punishment. Retributivism implies that the essential nature of the defendant’s responsibility does not depend on its recognition by the sentencing authority. Whether one chooses to punish a person who has been found guilty of breaking the law, that person is still culpable. His culpability exists; it is real. This real culpability does not change if the actual sentencing authority fails to impose the appropriate punishment. Whether appropriate punishment is actually imposed or not, culpability calls for the punishment that is deserved. This assumption informs our condemnation of the system when, for example, a defendant who “really” deserves a penalty less than death is executed. When such a

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thing happens, we understand the system to have committed a wrong, and its legitimacy is threatened.2 In this book, I have argued that the Supreme Court’s conception of judgment reflects the Court’s assumption of a particular two-world metaphysics, one in which the fundamental nature of being is understood in terms of two worlds, a real or true one and an actual or apparent one. Embracing this metaphysics, the Court has tried to solve the problem of judgment by grounding the validity of actual sentencing decisions in a “real world” of stable essences. In so doing, the Court has set off down a path that leads to self-doubt and disablement in the face of uncertainty, instability, and change. When we reach the end of the history of this error, a history Nietzsche recounts in Twilight of the Idols, we find ourselves at what appears to be the end of the road.3 What is left to us when the real world is abolished? Any confidence we had in the apparent world disappears when we can’t believe our own eyes; we can know nothing with certainty. In this situation, resignation to the impossibility of judging seems a perfectly reasonable response. As we have seen, one expression of this resignation is to defer to (a particular fantasy of ) science; another might be to embrace fundamentalism, broadly defined as a movement or point of view characterized by a strict and literal adherence to a set of basic principles. However, if we turn once more to Nietzsche’s history of metaphysics, we can see that these are not the only responses available to us. For what is left at the conclusion of this history is not only an end but also a beginning. Although when we speak of judgment we may well be involved in “a gloomy and exceedingly responsible business,” we need not despair. On the contrary, we can cheerfully return to the topic and start the conversation all over again. In the context of this book’s discussion of the recent history of the U.S. Supreme Court’s death penalty jurisprudence, to suggest we can start all over again is to issue an invitation to consider once more the question, how do we judge? In particular, how do we make claims of and for others when we may share no common criteria with which to legitimate these claims? In this chapter, I take up the invitation to consider how we judge without recourse to anterior truth, abandoning the Court’s exhausted epistemological approach in favor of a more phenomenological one. Thus, I start by describing the experience of judgment.

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I begin this chapter by calling attention to a curious aspect of this experience; specifically, I observe that, despite the fact that the experience of judgment has often been described, it remains oddly obscure. I present several descriptions of judgment, focusing on the places where these descriptions seem to fail or encounter some sort of limit. Rather than suggest a reason for these failures, in the second section of the chapter, I consider what is revealed when we look at what occurs at these sites. To anticipate, what I see there is the appearance of a new claim or interpretation of our shared world. Out of the gaps in the descriptions of judgment, new claims emerge into the world, claims that are taken up and carried away, beyond the intentions of the persons to whom they are attributed, to affect the web of relations that sustain them. In this context, no eternal, absolute, immutable ideal authorizes or retrospectively validates these claims; validity is not a condition of judgment but an effect. In other words, validity is not a function of a judgment’s “correctness” or correspondence to the real world but is, instead, an effect of its virtu, that is to say, its prowess or bold and apposite vitality. This virtu is not a property possessed by the person who judges so much as it is a quality that emerges from the assemblage of personal dispositions, disciplinary practices, social situations, physical environments, historical circumstances, and just plain luck that make any act of judgment possible. In the third and final section of the chapter, I suggest the value of looking at judgment this way with a review of Furman v. Georgia. The chapter concludes by imagining how judgment so revalued may change the way we understand the decisions we make every day.

I. Descriptions of Judgment In an article entitled “Freedom and Constraint in Adjudication: A Critical Phenomenology,” Duncan Kennedy describes the work judges do when they decide cases. In his description of the process of legal reasoning, Kennedy emphasizes that the idea of impartiality requires judges to develop legal arguments and test these arguments against counterarguments, which in turn are tested against new counterarguments, and so on. According to Kennedy, this back-and-forth continues until judges have tested every conclusion and every facet of the case before them, and he provides examples so the reader can appreciate the lengths to which judges (should)

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go. However, when every conclusion has been tested, and nothing remains for him to describe but what judges do when they finally make their decisions, Kennedy abruptly abandons this mode of thick description. Drawing his account of the process of legal reasoning to a sudden close, Kennedy assumes the voice of a judge and concludes: “Eventually my time will run out, and I’ll just have to decide.”4 In this account, Kennedy says nothing about how judges actually decide. Instead, he alludes to a limit—an interval of time, an interval that will “run out”—that generates and enforces the obligation to make a judgment. The force of this obligation transports Kennedy’s judge from the time of the exchange of arguments and counterarguments to the time of the decision. Without saying how the decision is arrived at, only that the judge has to make one, the judge decides, and the decision is suddenly made. The interval crossed has no particular length or breadth; all Kennedy says is that at a certain moment the judge’s decision will exist when it did not exist before.5 This unexplained moment is a lacuna in Kennedy’s description of judgment. A lacuna is a hiatus or gap, a blank or hole in an otherwise complete text or solid space. In his theory of the interpretation of dreams, Sigmund Freud identifies such a hole in the narrative of a dream as a spot that marks the point of contact with the unknown.6 In Kennedy’s description of judgment, I suggest that the missing moment, the moment which would describe the decision being made, similarly marks an “unplumbable” point where the experience of judgment cannot be represented in terms of the language of either rational deliberation or reflective intuition that we expect or wish to be the terms of judgment. Admittedly, Kennedy is offering a “critical phenomenology” of adjudication in his account. However, once we notice the missing moment in his description of judgment, we can observe it also in others. Consider, for instance, the discussion of judgment that occurred at a symposium on capital punishment held in 2002 at the Association of the Bar of the City of New York.7 Several prominent judges, lawyers, and scholars agreed to take up the question, “Can we define who deserves death?”8 The ensuing conversation focused on two affirmative answers to the question. The first answer was a substantive one: according to Robert Blecker, a professor of criminal law at New York Law School and a supporter of capital punishment, emotion or feeling informs us who deserves to die. Blecker told the

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symposium he knows who deserves to die because “I feel certain; and those two words are crucial. I feel certain, therefore, I am certain.”9 The second answer was provided by Jeffrey Fagan, a professor of law and public health at Columbia University and one of the authors of the study known as the Liebman Report.10 His answer was a more procedural one. Despite his personal opposition to the policy of capital punishment, Fagan said that “error rates” can be minimized if we have the political and moral will. If, among other things, we are willing to change the standard of doubt that must be met to convict someone of a capital crime, and are willing to require additional aggravating factors, and are willing to bar certain defendants with “inherently extenuating conditions” from consideration for the death penalty, Fagan claimed we can dramatically reduce the number of cases in which the person sentenced to death is found not to deserve death. As the other participants in the symposium were quick to show, both answers to the symposium’s question are open to doubt.11 However, the critics failed to point out an obvious problem: neither reply addressed the question posed. Can we define who deserves death? The answer is obvious: yes, of course we can. We define who deserves death every day. The question is then how we define who deserves death. Or more precisely, what do we do when we do this every day? How does what we do every day take place? The answer to that question is not given but presupposed. It seems to be simply and yet inexplicably, we just do it. Look again at Blecker’s account of defining who deserves death. In his argument for the necessity of emotion in this undertaking, Blecker seems quite forthright. He insists that we cannot be confined by a rational set of categories in our deliberation about what someone deserves. We must be free to refer to our feelings. Categories may limit our range of inquiry, but ultimately “the discretion to decide who lives or dies must be based on informed emotion.”12 Commenting on Blecker’s argument, Jeffrey Kirchmeier, a professor of law at the City University of New York, observes that when moral outrage is the barometer in deciding who is executed, it ends up looking a lot like the famous obscenity test, “I know it when I see it.” According to Kirchmeier, Blecker’s revised obscenity test for death is indefensible because it pays no attention to the fact that the Supreme Court has explicitly argued against such grounds for imposing death sentences. However, when we look at Blecker’s revised test for death more closely, what is striking is not his ignorance or audacity but his con-

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flation of two separate activities. To know that someone deserves to be put to death is not to decide that someone deserves to be put to death. On the contrary, to know is to not need to decide; in effect, a decision has already been taken. Blecker himself suggests as much when he claims that when we encounter people like Adolf Hitler, Idi Amin, and Timothy McVeigh, we cannot help but recognize them as the “worst of the worst” and judge them as deserving of death. The question of how we recognize them as deserving of death is ignored and then covered over by his assumption that we cannot help but already recognize them as deserving of death. Rather than providing an explanation or description of what we do when we decide what they deserve, Blecker expects us to already know.13 Similarly, in his ostensibly contrasting argument about defining who deserves to die, Fagan also expects us to already know what to do. When we examine his argument more closely, the measures he suggests we must take to make sure that our judgments are not mistaken do not themselves actually help us make those judgments. Fagan’s measures would restrict the number of people judges or juries could consider eligible for the death penalty but would not tell us how we decide who from among those eligible deserves to die. Thus, Fagan is vague in the same way that the Supreme Court of Georgia is vague about what happens when jurors actually define who deserves death. As the U.S. Supreme Court recalls in Zant v. Stephens (1982), the Georgia Supreme Court analogizes the capital sentencing scheme in Georgia to a pyramid divided into levels, each level representing statutory aggravating circumstances that must be met for the defendant to proceed further up the pyramid.14 Only at the last stage do jurors, by exercising their discretion, determine who will find themselves at the top of the pyramid. In other words, there remains a lacuna at the critical point of decision: at the last stage, an exercise of unattended discretion determines who will die. The measures Fagan proposes similarly reduce the number of people at the very top of the pyramid, but they too shed no light on how those who find themselves there have actually arrived at this final destination. What do we make of these lacunae? When we reflect on them, I suggest two things are revealed. First, an extraordinary array of forces acts on and through us as decision makers, so that how a particular decision is made may remain obscure while the reasons for that decision are overdetermined (there are too many factors). Second, an unexpected continuity

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appears between modern descriptions of judgment and classical ones, and on the basis of this continuity a critique of the rational, autonomous, selfdetermining subject and agent of judgment may be proposed. The first revelation should not be surprising. Legal realists and critical legal studies scholars have long been sensitive to a variety of psychological and social forces that influence judges’ decision making. Jerome Frank is exemplary in this regard. In Law and the Modern Mind, Frank famously claims that our positions, like our conduct, are largely controlled by “biases”—desires and aims, of whose existence we are more or less unaware.15 Members of the “sociological school” acknowledge the effects of the social, economic, and political views of judges, but as far as Frank is concerned they do not go far enough.16 Specifically, they disregard “the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.”17 While legal realists such as Frank may recognize that we don’t appreciate much about how we judge, their interest in these lapses in our attention is generally limited to the extent that they make the law more unpredictable and (potentially) more open to manipulation (for good or ill).18 In brief, legal realists are ultimately interested in understanding how legal decisions may be (un)consciously constrained. By contrast to these philosophers of law, I am interested in these lapses in our attention because, when we study them, they do not make judgment less mysterious but really rather more so. Consider the number of more or less mutually exclusive forces that act on us as we decide. Several have already been observed. Blecker, for instance, alludes to (Christian) morality (“Evil is real.”) and social facts (“Everyone knows Hitler is ‘the worst of the worst’!”). In his phenomenology of adjudication, Kennedy refers to time. Jacques Derrida’s description of a decision in “Force of Law” introduces additional forces to consider.19 I will dwell on this description for a moment because of its impressive sensitivity to the play of powers across and through us when we judge a situation. “Force of Law” begins with a sentence in French: “C’est pour moi un devoir, je dois m’adresser à vous en anglais.”20 “Je le dois,” Derrida goes on to explain in English, means several things at once. Attending to the word dois, Derrida says the phrase may mean, among other things, “I must,” “I should,” “I ought to,” “I have to.”21 Such meanings indicate that the speaker

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finds himself in a situation he does not control, obliged by a sort of symbolic force or law.22 This force or law is manifest in (at least) two different senses of justice, which cast the speaker’s obligation to speak (in English) in (at least) two different lights. One is a sense of justice in the sense of adequation. Derrida says that speaking in English is the right thing to do (and therefore he should [dois] do it) because what is said in English will correspond more closely to what is thought, as what is thought will more accurately be heard in the language of the majority of those to whom he is addressing himself. However, the force or law that obliges the speaker to speak (in English) is also manifest in a sense of justice more explicitly associated with power. The majority of those to whom the speaker is addressing himself determine what is just in this (speech) situation, a situation he does not control, for they dictate the lingua franca. Yet one is obliged to speak the language of the majority, Derrida remarks, especially when this majority grants speech to the stranger or foreigner, by a law that may be characterized not only as the law of the strongest, or the equitable law of democracy. Rules of decorum and politeness may also be in force. Once we notice the number of forces that compel us as we decide, it is possible to see an unexpected continuity between modern descriptions of judgment and classical ones. Classics scholars observe that in the texts of Homeric Greece, decisions are never described; instead, a character experiences the play of a number of forces in and through parts of his body, and in the next line a decision has taken place. In his discussion of this phenomenon, A. W. H. Adkins cites Bruno Snell’s analysis of a scene in the Iliad in which Odysseus wonders what he should do, pondering his situation and the voices he hears “in his phren and his thumos.”23 A few lines later, Odysseus slays “blameless Deiopites” without a decision being mentioned. In his reading of this scene, Adkins emphasizes how “it seemed to me in my thumos” differs from “I decided.” Thumos is not a psychological function, nor an organ with a physical location in the body, nor something physical that is not an organ. Rather, thumos is associated with breath, smoke, and fire: Adkins describes it as “the hot, swirling, surging—and sometimes choking—sensations produced by feelings of anger and other violent impulses.”24 According to Adkins, Homeric man has a psychology and a physiology in which such phenomena are figured as parts that, like thumos, are more in evidence than the whole. In addition, Adkins says, Homeric man believed that the gods might act directly on him or some

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aspect of him. Thus, any sudden and unexpected excesses of energy experienced by Homeric man in his phren and thumos could be attributed to agents outside of himself.25 The connection between modern man and Homeric man may seem weak, particularly as Adkins claims that the “fragmented psychology” of Homeric man does not relieve him of responsibility for his actions. While the unity represented by the personal possessive pronoun (“his actions”) is only “lightly experienced” (so that thumos and similar aspects of the individual, as well as hands and feet, may be felt as springs of action),26 Homeric man lives in a “results-culture.” Consequently, “his most important terms of value evaluate not his intentions nor his efforts but their results.”27 By contrast to Homeric man, we do not seem to live in a results-culture. As I discuss in Chapter 4, at law, actus reus is not sufficient to establish the commission of a crime; mens rea is still what makes someone blameworthy. Along these lines, Blecker insists that when we condemn the “worst of the worst,” what we condemn is the person, “the character—who he or she is.”28 The effects of a person’s actions are not our primary concern; what or who a person reveals himself to be through his actions is what we care about when we judge. However, the puzzling opacity of the moment of decision in accounts of judgment, including Blecker’s, makes it worthwhile to attend more carefully to our assumptions about the psychologies, the bodies, and the relationships with the external forces that play on and through us when we judge. They also challenge us to consider again exactly what we judge, particularly in death penalty cases. Even Blecker suggests above that we know someone’s character through his crime and “other acts and attitudes.” But if we know someone only through his behavior—his acts and attitudes—it is an open question whether his behavior reveals his preexisting character or, on the contrary, his character is created by his behavior. In brief, Blecker’s suggestion may imply that character does not determine action so much as action determines character. Contemporary scientific research on a variety of topics, including studies done on the capacity of human beings to “read” facial expressions, suggests that the modification of behavior, or doing something as simple as stimulating the muscles in the face that are used to smile, may affect one’s physiological and psychological health.29 Such science offers additional support for a contemporary retelling of the observation made of classical texts, that judgment is not exercised by a rational,

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autonomous, self-determining subject but rather is realized by a person who understands herself to be a body constituted of various “organs,” each with its own “voice” and thus its own capacity to influence her course of action.30 It also encourages us to focus on effects as much if not more than intentions when we describe the experience of judgment.

II. The Experience of Judgment The description of judgment I offer here is an elaboration on these observations. In my description, I focus on four aspects of the experience of judgment, all of which are intimately related to one another. First, I focus on the character of judgment and present it as an act. Second, I look at the agent of judgment and observe how the judge is like a sovereign, although perhaps not the figure of the sovereign with which we are most familiar. Third, I examine the competence of judgment, conceiving of it as virtu rather than correctness. Finally, I consider the effects or consequences of judgment and attend to the violence by which an act of judgment may be recognized as such. To break up the experience of judgment into these four aspects—character, agent, competence, and consequences—is plainly awkward because of the extent to which all four aspects imply and depend on each other. Nevertheless, as these four aspects correspond to moments of intensity in the experience of judgment and have their own associations, it is useful to treat them separately. As I indicate above, the first thing I observe about the experience of judgment is that it is an act.31 In some ways, this may seem obvious; however, I do not think we seriously attend to its significance when we ask ourselves how we judge. But before we can consider this significance, I should clarify what I mean by an act. My understanding of action is derived in large part from Hannah Arendt’s work in The Human Condition.32 In that book, Arendt says that to act, in the most general sense, means “to take the initiative, to begin . . . , to set something in motion.”33 According to Arendt, with action, something unexpected, unprecedented, and unique appears in the world. It appears as if from out of nowhere, as if it were its own cause. Yet, Arendt observes, an act cannot be conceived except for the circumstances of a particular place and time. Therefore, the principle of action cannot be mistaken for something like Kant’s good will.34 On the

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contrary, the impulse to act springs from experience; specifically, it springs from the experience of birth. Arendt claims that this experience is not remembered but rather gives rise on a visual level, if not a visceral level, to the principle of delivering something new and unprecedented into the world, something that comes into the world as that which begins, as a beginner. What appears in the world with action is not simply the principle of beginning, however; an act is also unprecedented and unique. Arendt emphasizes that there is no prior instance of this act or prior case of it. While it appears in a particular context at a particular moment, it cannot be anticipated. Like a child, it may be familiar in some ways, but it is one of a kind, never seen before and never to be seen again. Along these lines, Arendt describes the appearance of an act as a miracle of life. Out of an undifferentiated primordial ooze of inorganic matter and infinite organic processes, a living thing emerges, manifesting in its unforeseeable appearance the startling unexpectedness inherent in all beginnings. The observation that judgment brings something new into the world is not itself original. Indeed, any discussion of judgment in a legal setting, particularly if that discussion concerns the interpretation of legal texts, will be preoccupied with issues of innovation and the power of judgment to introduce change. To the extent that the legitimacy of the rule of law is understood to depend on the stability of the meaning of (founding) legislation, this preoccupation is understandable. Nevertheless, when we conceive of judgment as an act, we may no longer ask ourselves—as if we could determine the matter—whether introducing change is appropriate or necessary. When judgment is conceived as an act, it may be recognized as an occasion of change. Rather than discussing whether change should happen, we are better served, then, by a discussion of how change takes place. To demonstrate how we are better served by a discussion of how rather than whether change takes place, consider the dilemma of the originalist. In The Tempting of America, Robert Bork defines law as a rule that we have no right to change except through prescribed procedures.35 Interpretation of the Constitution does not count as such a procedure, so Bork says that the Supreme Court must be careful not to change the Constitution’s meaning when it decides cases. Thus, Bork advocates the philosophy of original understanding. According to Bork, only this philosophy is capable of supplying “neutrality” in deriving principles from the Constitution,

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defining them appropriately, and applying them to new cases, so that the Court does not inadvertently change the meaning of the law it interprets. Of course, as Bork’s critics have pointed out, the application of these principles demands that the judges using them make choices. For instance, once a principle is derived from the Constitution, neutrality in the definition of principle requires that its meaning be stated in such a way so as not to change its “breadth or level of generality.”36 To find the right degree of generality, Bork advises that a judge should “state the principle at the level of generality that the text and historical evidence warrant.”37 But what the text and historical evidence warrant is itself a matter of judgment. In other words, the matter is not self-evident. Thus, for example, Bork himself must make an argument for his decision that the Fourteenth Amendment’s equal protection clause requires black equality.38 However, from Bork’s perspective, when a matter is not clear—that is to say, when it calls for judgment or an interpretation—an opportunity for unwelcome, unjust innovation presents itself. Try as he might, he cannot avoid these moments. While interpretation of the words, structure, and history of the Constitution is supposed to make obvious what level of generality of the definition of a principle is appropriate, Bork ultimately has to accept “the level of generality that interpretation of the words, structure, and history of the Constitution fairly supports” as determining the correct answer.39 This conclusion begs only another question, of course: specifically, what level of generality is that? We see, then, that even an attempt as powerful as Bork’s to stop judgment from bringing change cannot avoid the act of interpretation, and hence, innovation. If judgment is unavoidable (as it appears to be), it is natural to turn to the judge as the person who brings the act of judgment into being and who may, thus, be held responsible for any change that judgment occasions. Turning our attention to the agent of judgment, the second aspect of the experience of judgment I identified at the outset, we can see in this context that the judge may seem like a sovereign. However, in saying that the judge seems like a sovereign, I do not intend to imply that the judge is an all-powerful figure, like the sovereign of John Austin’s command theory of law, for example.40 Rather, I see the judge as sovereign in Carl Schmitt’s sense of the word. Schmitt says, “Sovereign is he who decides on the exception.”41 What this means is that the sovereign is the one who recognizes the unprecedented

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and unexampled, that which is “not codified in the existing legal order,” and “cannot be circumscribed factually and made to conform to a preformed law.”42 The sovereign, thus, somewhat ironically, appreciates in the particular what is a case of what is not routine (i.e., what cannot ever be a case).43 I find several, perhaps surprising, things about this definition of sovereignty to be relevant to a phenomenological description of the agent of judgment. One is the implication that it is only when a sovereign says that a set of circumstances or a situation is exceptional that it becomes an exception.44 The second illuminating thing is, curiously, the reverse of the first. When Schmitt says, “Sovereign is he who decides on the exception,” it is implied that only by successfully deciding that an exception exists does “he”—whoever he is—become sovereign. In other words, what “is” and what “becomes,” either exceptional or sovereign, are not given in advance. Schmitt appears to allude to the sovereign’s odd (temporal) status when he observes that what concerns us here is “a borderline concept.”45 A borderline is also suggested by the sovereign’s strangely liminal institutional position. The sovereign belongs to the normally valid legal system by virtue of the fact that he is the one designated by the constitution to decide when the existing order is (to be) suspended. However, he also stands outside of the system. This is because, according to Schmitt, the function the sovereign fills is not a technical one. The constitution may prescribe that the decision on the exception will be taken by the sovereign and that the sovereign will decide the exception. But even when a decision is legally prescribed in this way, the law does not designate who is capable of taking the decision. Schmitt observes, “Accordingly, the question is that of competence, a question that cannot be raised by and much less answered from the content of the legal quality of a maxim.”46 He who purports to be sovereign must show himself to be sovereign in deciding. He proves himself to be sovereign by showing himself to be competent. When the exception is decided as such, he who has decided it is revealed as the sovereign.47 He makes himself manifest as sovereign in the decision. Competence is the key, but it is not something that the sovereign necessarily possesses before the moment when his competence presents itself in a particular, unprecedented set of circumstances. Nevertheless, it is not the circumstances of the decision that finally determine whether an exception exists and a decision is taken. Rather it is how those circumstances are identified in the decision that ultimately decides whether an exception

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is “really” at hand. In other words, the decision may not be taken if the circumstances do not warrant it, but it is not the circumstances themselves that determine whether there is an exception. It is up to the sovereign to say that an exception exists, but it is not obvious who the sovereign is until he is revealed, by circumstances, to have decided on the exception. When I say that the judge is sovereign, then, I mean to describe the judge as an actor who is revealed, as such, in his action, which is the act of deciding. The judge is the agent of a judgment, but he is also, to the extent that he appears as a judge only by virtue of his judgment, an effect of his act. If he can be said to exist at all, the sovereign is unremarkable until he appears in a decision on the exception, by which a set of circumstances is recognized as exceptional. Similarly, the judge is invisible until he appears in an act of judgment by which a new interpretation of the world is brought into being. Before I take up the topic of the judge’s peculiar competence, I want to elaborate on the conditions of the judge’s appearance, for this disclosure is not a simple matter. Again, I am suggesting that the “who” of the judge is not an attribute that is possessed and then represented by her in her speech. Rather the “who” is expressed in what the judge says and does as others perceive her actions.48 In other words, the judge’s identity is a function of the acts, the judgments, attributed to her by others. In The Human Condition, Arendt observes that what an actor says and does is “real” only to the extent that it appears. As it is only in the web of human relationships that action encounters and engages actors and speakers who remark the appearance of a new actor in their own words and deeds, action needs the surrounding presence of others.49 When the act of judgment is resituated in the web of human relationships, then, the actor or judge herself appears only when and how her judgment appears to others. By attending to this aspect of the relationship between the actor and the act, we may appreciate something about the third aspect of the experience of judgment. Specifically, we may appreciate how the judge’s competence is a function of a larger network, a web of relationships in which an act is taken up and by which, properly speaking, it is realized. For it is only in the web of human relationships that an act can have effects. Actors reveal themselves as such in words and deeds that appear in the space that exists between human beings drawn together by their common interests, which constitute, in Arendt’s words, “something which inter–est, which lies

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between people and, therefore, can relate and bind them together.”50 The immediate consequences of speech and action are due to this intangible inbetween, for what the actor initiates, others there take up. What this means is that the efficacy of human action is not solely determined by the will or the intention of the actor but is also the product of the medium in which action has its reality, the web of human relationships. When one observes one’s relative powerlessness over the conditions of one’s life, one can conclude that it is altogether useless to try to master them. In his own time, Niccolò Machiavelli observes that people have this opinion when there is tremendous change in public affairs.51 But while it may be true that “Fortune governs half of our actions,” Machiavelli says that “she leaves the other half more or less in our power to control.”52 Rather than give up on free will, then, Machiavelli recommends attending to “the times and circumstances” and adjusting one’s behavior. To affect events in this world he advises the prince not to give way to despair or to seek refuge from the “torrential stream” but to cultivate his strength or virtu. According to Machiavelli, with a combination of humility and recklessness, one might successfully navigate the waters in which one is inevitably tossed. I find much of Machiavelli’s advice to the prince to be directly relevant to the judge who appears in the act of judgment. In particular, I am struck by Machiavelli’s sensitivity to the way human beings are at the mercy of “the temper of the times,” so that “if a prince conducts himself with patience and caution, and the times and circumstances are favorable to those qualities, he will flourish; but if times and circumstances change, he will come to ruin unless he changes his method of proceeding.”53 Like “good” government, what constitutes “good” judgment is its appropriateness for a particular time and place. Its “validity” may then be appreciated as a manifestation of the judge’s attentiveness to her connectedness and her appreciation for the circumstances that limit and enable her action. The validity of judgment may then refer not to the truth of a decision but to an appreciation of its virtu. We can appreciate the competence of the judge as virtu even more when we observe that what a judge does is respond to the exception presented in any case, that quality for which no anterior truth exists. Machiavelli ostensibly offers the prince the benefits of his “knowledge of the actions of great men, acquired through long experience of contemporary

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affairs and extended reading in antiquity” to help him make “virtuous” decisions about how to proceed.54 But what Machiavelli really has to give the prince is a series of examples from which no generalizations may be drawn. The examples provide no principle for action, for though “a prudent man should always follow the footsteps of the great and imitate those who have been supreme,”55 at the same time “two men proceeding in different ways may . . . produce the same effect; while two men proceeding in the same way vary in their effectiveness, one failing, one succeeding.”56 The only thing that does not vary is Fortune, and Fortune is not consistent. In Machiavelli’s words, “Time contains the seeds of all things, good as well as bad, bad as well as good.”57 Like the prince, the judge always confronts particular cases and must act without a rule. What makes the judge’s decision valid, then, is not its correspondence with a truth or its identification with a principle. Rather, the validity of this decision is a reflection of her ability to take into account the time and circumstances in which her decision appears. If she is unprepared or unlucky, she will remain, for all intents and purposes, “invisible,” as her decision will not take hold. If she is capable, and fortunate, her interpretation of and for others will appear and, with this appearance, change the reality of the world constituted in the space that lies between people. These observations may sound very abstract, so I will turn to Robert Cover to put some flesh on their bones.58 Cover famously begins his essay “Violence and the Word” with the following sentence: “Legal interpretation takes place in a field of pain and death.”59 What he means is that legal interpretative acts signal and occasion the imposition of violence upon others.60 When a judge makes a judgment, the result is that somebody suffers. The person judged may have to pay a fine, or he may have to spend years in prison; he may even have to die. Whatever is the case, judgment is finally a brutal and bloody business. When Cover elaborates on this business, he illustrates the virtu aspect of judgment I have just been discussing. Cover claims that acts of judgment in the legal system are legal interpretations that really just serve as “triggers for action.”61 What a judge says must be taken up by others to be realized, as others make the judge’s decision come to pass by transforming her words into an act of violence.62 Most people do not want to inflict pain on others, however.63 As this violence is necessary, the judge in her judgment must overcome this general resistance to violence.64 To overcome

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this resistance, she must therefore attend to what Cover calls “the conditions of effective domination.”65 These conditions inform the judge as to what can reasonably be expected from people so that, when she makes a judgment, she does not ask them to commit more violence than they are willing or able to do. Thus, Cover claims, legal interpretation is never “free.” Judgment must attend to the legal and the social “text” in which it takes place. The attention the judge must pay to the social text is particularly subtle, because her judgment must be able to overcome social inhibitions against violence to be realized, while at the same time it must effectively reinforce these inhibitions to serve its purpose of protecting the legal order.66 What is more, Cover observes that in the United States the act of interpretation is institutionally separated from the act of carrying out or realizing the interpretation on the bodies of men. Thus, if a judge wishes her understanding of the law to be transformed into a deed, she must be sure to get at least one other judge to go along so as to avoid reversal on appeal.67 Cover claims that the institutional arrangement serves a larger, political purpose: it guarantees that “no judge acts alone” and, thus, protects society against tyranny.68 But the result is that the judge’s decision may not seem particularly articulate or logical. Because she may have to make compromises to mobilize “the force of collective violence,” she may have to sacrifice coherence.69 This description of what judges do when they judge suggests that a “successful” judge, like a successful prince, takes into account a whole host of circumstances when she acts. Her act itself is multifaceted—it is persuasive, but it may also be physically compelling by virtue of the judge’s location in a particular personal, social, and institutional network of power; it is strategic, but it must also be flexible in its orientation toward any end, as her initial goal may not be achievable or may change. Such a judge does not assume that the world in which she acts remains constant; after all, her own actions change it. Nor does she depend on a principle to guide her or affirm her decisions; fortune determines everything that virtu does not.70 In brief, the judge cultivates an attunement to the conditions of her judgment. This attunement should not be confused with what Arendt calls the “community sense.”71 In Lectures on Kant’s Political Philosophy, Arendt describes the community sense as an “enlarged” sense of what pleases and displeases. Through imagination and reflection, all others and their feelings are taken into account. As a result, what otherwise would be utterly private and

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inaccessible to others is open to communication and can serve as the grounds for the appeal that gives judgment its “special validity.” In Arendt’s words, “imagination and reflection enable us to liberate ourselves from [the private conditions that condition us] and to attain that relative impartiality that is the specific virtue of judgment.”72 The judge I have described does not seek “liberation” from her idiosyncrasies to make valid judgments. This is not simply an observation based on the practical difficulty or the moral questionableness of coming to believe that we have succeeded in liberating ourselves from the conditions that condition us. Rather, it is to suggest that an “enlarged mentality” may be more successfully achieved by cultivating our capacity to acknowledge rather than deny the diverse forces that play on our psychologies, bodies, and relationships.73 I have already indicated what some of these forces might be. My point here is that we need not master or control these forces to make claims others recognize as valid. The fourth and final aspect of the experience of judgment—specifically, judgment’s effects—is the most difficult to describe. In part this is because, when we see judgment as an act that takes place in and is taken up by a network or a web of relations, these effects may not necessarily be those intended by the one to whom the act is conventionally attributed. Every act as a beginning generates new processes that establish new relationships, reconstituting the original web within which the judge and her judgment originally appear. It is easy to revel in the boundlessness of action. However, it is also important to attend to the often violent effects to which the act of judgment as an act gives rise. In the context of a discussion of capital punishment jurisprudence, the fact that the act of judgment may have lethal consequences is apparent. But every act of interpretation precludes or excludes certain things, saying “yes” and “no” to certain possibilities and thus orienting us in relation to other words and deeds in the world. We may never know what has been barred from appearing by a particular act of judgment, yet we may still be responsible to, if not for, the loss that occurs. That is to say, we are, as Arendt suggests when she discusses the irreversibility and unpredictability of the processes started by acting doomed not only to be the victims of deeds we cannot forget.74 More troubling still, we are doomed to be perpetrators of deeds we choose to do without knowledge or even the possibility of recollection. This suggests that intention may not be a very helpful way to think about the effects of judgment. But then how do we think about these

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effects? How do we describe, let alone appreciate, what we do when we judge if we don’t use the language of will? What is more, when we move away from evaluating action in terms of will and deliberate causality, how do we contain its boundlessness? As this boundlessness threatens to destroy the meaningfulness of the very distinction between “act” and “effect,” how do we decide where the act ends and its effects begin? These questions will not be answered here, but the fact that they arise is more significant than any particular reply, for the fact that they arise suggests that an act of judgment may be the occasion of what Walter Benjamin calls “divine violence.”75 Benjamin describes divine violence as an eruption or event of power that razes the epistemological categories of ends and means. The distinction between ends (effects) and means (acts) is destroyed when a “pure immediate violence” eradicates the lines that define means and ends as such. According to Benjamin, these lines are a function of “mythical violence,” drawn by the mighty to make themselves manifest. By drawing these lines, the mighty—be they gods, kings, or simple strongmen—also make transgressions possible and punishment necessary. Divine violence destroys these lines and puts nothing in their place. Divine violence is completely indifferent to the fine points that, once connected, make concepts like guilt and retribution possible, let alone meaningful. It is in this sense that Benjamin says divine violence expiates. To expiate is to put an end to, to make amends for. Divine violence extinguishes the distinctions imposed by the powerful in history that make blame and punishment, remorse and condemnation possible. Because divine violence razes without restoring, it appears completely unmotivated. Mythical violence erects boundaries to call attention to itself; divine violence does not seek to be known, let alone idolized, worshipped, or obeyed. No rationale for divine violence may then be discovered retrospectively in its effects. Indeed, these effects cannot be perceived except, perhaps, in their incomparability. Thus, the factors with which we might try after the fact to construct a causal explanation for divine violence do not or cannot determine when or why divine violence occurs. Divine violence cannot be accounted for. We cannot even be sure what happens when it is present. When I suggest that judgment may be conceived as divine violence, I mean to try to capture the radically destructive and yet somehow innocent aspect of what may happen when we bring forth a claim for or of oth-

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ers. In making such a claim, we may identify someone as a member of a particular class and arrange her according to her similarity with other members of that class. However, it is also possible that we realize something that disrupts or destroys an existing relation of power. When that happens, we inaugurate something unprecedented and set in motion something we do not have the capacity to determine or control. This claim may change everything, and yet we may not see how we have made any difference. For the violence that takes place in an act of judgment as I have described it is realized through a mundane and multifarious tangle of everyday forces which, like the tangle of dream-thoughts that Freud says cannot be unraveled at the navel of the dream, touch on the unknown and therefore cannot be traced to any definite source or conclusion. When these everyday forces converge, we may be completely taken by surprise by what it turns out we will have decided. Indeed, if we are suddenly roused by the strokes of a clock like the one Nietzsche describes in the preface to On the Genealogy of Morality and try to figure out what has happened to us, we may find that, like the lightning that Stewart identifies with sentences of death, judgment has struck with wanton and freakish force, and we are the ones who will have decided.76 By redescribing judgment as an act, this startling aspect may come to the fore.

III. Beginning Again: Furman v. Georgia To demonstrate how attending to this experience of judgment can change our perception of the decisions made in death penalty cases, I return to the death penalty case that inaugurates the recent history of American death penalty jurisprudence: Furman v. Georgia. I return to this case not to show how the outcome would have been different if the Supreme Court had refused to accept the terms of a two-world metaphysics but, rather, to examine Furman itself as an exemplary example of the act of judgment. To examine Furman as an act of judgment is to conceive of it as an event with indeterminate consequences. One of the more predictable consequences of Furman (but with unknown consequences itself ) was that death rows across the United States were emptied. The death sentences of 558 people were commuted in thirty states and the District of Columbia,

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and by 1987, 239 Furman-commuted prisoners had been released to the community.77 Furman had other consequences as well. For instance, Furman revolutionized Eighth Amendment jurisprudence. It did so by finding a punishment to be cruel and unusual because the manner in which it was imposed deprived people of due process of law. Furman also initiated a new way of thinking about the death penalty, one that explicitly calls for sentences in capital cases to reflect the (real-world) truth of the convicted defendants’ guilt. And Furman established the constitutional fact that “death is different.” In what follows, I focus on this one, easily overlooked, consequence of Furman. I do so because, by determining that the sentence of death is an exceptional punishment, Furman can be characterized as a decision in what Schmitt takes to be “the true sense of the word.”78 With Furman the Court decides that death is unlike any other penalty and makes the singular character of death a significant fact for criminal law. Like Schmitt’s sovereign, then, the Court decides on the exception. However, when we examine how the Court succeeds in making this decision, we can see how the determination that death is an exceptional kind of punishment complicates any simple interpretation of the Court’s decision making in Schmitt’s terms. We can also begin to appreciate what makes Furman an exemplary example of the act of judgment. In large part, the Court’s success in making the claim that death is different has to do with the logic of the claim and the strength of the arguments made on its behalf. In Furman v. Georgia, several justices argue explicitly that death is an exceptional punishment. The two most famous arguments are those of Justices William Brennan and Potter Stewart. In his opinion, Brennan observes that it is the common view that “death is the ultimate sanction.”79 He also notes that “there has been no national debate about punishment” comparable to the debate about the death penalty, and no other punishment has been so continuously restricted. Brennan further distinguishes death from other punishments by remarking on the fact that states reserve capital punishment for the most heinous crimes. He notes also that some state legislatures have required particular procedures in death cases. Finally, Brennan observes that the Supreme Court itself “almost always treats death cases as a class apart.”80 According to Brennan, death is “in a class by itself ” because of its severity, finality, and enormity.81

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In his opinion in Furman, Stewart elaborates on Brennan’s assertion that death is different because of its severity, finality, and enormity, stressing that the “penalty of death differs from all other forms of criminal punishment, not in degree but in kind.”82 Stewart identifies three ways in which death is different in kind. First, it “is unique in its total irrevocability.” Second, it is unique in its rejection of rehabilitation of the convict. Finally, Stewart says, it is unique “in its absolute renunciation of all that is embodied in our concept of humanity.”83 The persuasiveness of these arguments is clearly strengthened by the authority of the institution of the Supreme Court. But the decisions the Court makes can undermine this authority. To prevent this from happening, the justices must be prudent. In their Furman opinions, several justices discuss the need for the Court to exercise restraint. Most of these justices explain this need with reference to issues of separation of powers and federalism, but in his Furman opinion Chief Justice Warren Burger explicitly warns that by overruling McGautha v. California (1971), the Court “will do little to inspire confidence in the stability of the law.”84 The justices’ sensitivity to the public is another possible explanation of the Court’s success in declaring that death is different from other penalties.85 As we have seen, Brennan explicitly references “the common view” when he claims that death is the ultimate sanction. He also talks about the temper of the times when he comments on the lack of debate about punishment in general compared to debate about the death penalty.86 Observing the Court’s sensitivity to the attitudes of the national (and perhaps international) public,87 it is possible to conclude that the Court finds “death is different” not because it decides to do so but because this view is a social fact, the existence of which the Supreme Court properly recognizes as a rule to guide future legal decision making.88 Among other things, these observations about the Court’s determination that death is different call attention to the fact that the body to which we attribute this determination is not necessarily a single, rational, sovereign subject. To begin with, the Court consists of nine justices. In Furman v. Georgia this fact is more evident than in many cases because each one of the nine justices writes his own opinion.89 Every opinion a justice writes testifies to the strength of different logical and ideological forces, but Justice Harry Blackmun’s opinion in Furman is particularly illuminating of the various social, political, psychological, biological, and spiritual

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impulses with which each justice contends. In his Furman opinion, Blackmun famously describes his personal struggle with the issue of capital punishment, and he dwells at length on his “distaste, antipathy, and indeed, abhorrence, for the death penalty.”90 Yet, despite “an excruciating agony of spirit,” he does not support the majority’s decision to find capital punishment unconstitutional because he is not persuaded that in the year since the Court decided McGautha v. Georgia “somehow the passage of time has taken us to a place of greater maturity and outlook.”91 Blackmun emphasizes that if he were a legislator “I would do all I could to sponsor and to vote for legislation abolishing the death penalty.”92 But, he reminds his audience, the sole task of the judge is “to pass upon the constitutionality of legislation that has been enacted and that is challenged.”93 He admits to being tempted to cross the policy line, but he says he resists this temptation in order to carry out his duty to the Constitution. In sum, the Supreme Court’s decision that death is different is a significant but subtle event of a complex sovereign power. But what makes Furman an exemplary example of an act of judgment is more than the fact that it is an occasion of major legal effects, one of which is the decision that death is different. As we have seen, Furman demonstrates the role the audience plays in realizing the claim that the Court as actor seems to make; and, at the same time, it reveals the fragility of the coherence of that actor. What really makes Furman stand out, though, is that the claim “death is different,” for this claim reveals something about the act of judgment itself. As I have described judgment above, judgment is an act that brings a new interpretation of the world into being and, in so doing, reorients the world, more or less violently excluding other possibilities for beginning. Concern about this violence informs our familiar approach to judgment, insofar as we tend to focus on responsibility for the decisions we make, “whether [we] be litigant or judge.” Concern about the violence we (unwittingly) do when we judge is expressed as anxiety about finality, the anxiety to which Arendt alludes when she argues that the faculty of forgiving is “the possible redemption from the predicament of irreversibility,” thus implying that redemption is desirable when confronted with the irreversible consequences of action.94 The U.S. capital punishment system is very familiar with the predicament of irreversibility. While it is not particularly worried about forgiveness, it is preoccupied with finality. Given that

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death is the penalty at issue, this preoccupation may not seem surprising or noteworthy. However, the system’s preoccupation with finality is worth noting as it reveals the terms in which the act of judgment is currently conceived and undertaken as an act. These terms may be observed in two examples. As we have seen, in Furman v. Georgia Justices Brennan and Stewart discuss the irrevocability of death as a penalty. Stewart emphasizes that this irrevocability is unique to death, but Brennan goes further in his opinion by elaborating on the difference between capital punishment and expatriation. In Trop v. Dulles (1958), the Supreme Court rules that expatriation is cruel and unusual punishment.95 In Furman, Brennan points out how death is like expatriation but worse. Like expatriation, death destroys the individual’s “political existence” and his “status in organized society.”96 However, unlike expatriation, “death also destroys ‘his very existence.’ ”97 In addition, Brennan says, “There is, too, at least the possibility that the expatriate will in the future regain ‘the right to have rights.’ Death forecloses even that possibility.”98 In other words, death is final and takes away all hope of a future, and thus of a possibility, no matter how remote, that things will change. What Brennan emphasizes in this discussion, then, is the fact that, in a secular society, death is absolute. In a society that does not share religious values or a belief in eternal life, the state’s decision to sentence a person to death is what Albert Camus calls a “real” judgment, one that may never be mitigated once it has been carried out.99 The second example of the U.S. capital punishment system’s preoccupation with finality has to do with the fact that the Supreme Court is the court of last resort in the United States. No appeal or writ of error is possible when the Supreme Court makes a decision. The litigation between the parties is terminated, and nothing is left to be done but to enforce what the Court has determined. Of course the legal system must be able to settle matters once and for all. If cases remain open indefinitely, the promise of justice, however that promise is understood, is never fulfilled.100 When the death penalty is involved, however, fulfilling the promise of justice is particularly difficult. The delay happens because after a death penalty is imposed it cannot be carried out until all appeals are exhausted. This means that, despite the fact that the defendant has been found guilty and is being held in prison, he is not, strictly speaking, being punished yet. Certainly, his sentence is not being carried out. In this context, the U.S.

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capital punishment system’s preoccupation with finality finds expression in the common concern that people on death row (or their supporters) will “abuse” the system by filing unreasonable appeals to delay their executions. While people on death row appeal their sentences, they prevent justice from being carried out—not only in their own cases but also in the cases of others whose litigation may not be heard while these appeals are being considered. The Supreme Court’s concern about such abuse is made manifest in Vasquez v. Harris (1992), a case concerning the execution of Robert Alton Harris, the first person to be put to death in California after the constitutionality of capital punishment was restored in the United States.101 After vacating a fourth stay of execution in the early hours of the morning that Harris was scheduled to die, the Court prohibited federal courts from entering any further stays of execution. In apparent frustration with Harris’s last-minute stay activity but without offering an explanation or justification for its injunction, the Court writes an opinion of a single line: “No further stays of Robert Alton Harris’s execution shall be entered by the federal courts except upon order of this Court.”102 The terms used in these two examples of the capital punishment system’s preoccupation with finality present two different approaches to the act of judgment. The terms of the first example express a view that emphasizes how, as an act, judgment definitively excludes certain possibilities. Informed by a fearful respect for the capacity of action to foreclose the future, to end what has begun or to prevent something from beginning at all, we hesitate and long to extend the time we have to decide so that we may be as certain as humanly possible of what we do. At the same time, as the terms of the second example suggest, the act of judgment can be approached as an occasion of change that we welcome as it allows us to put the past behind us. From this point of view, judgment as an act brings a new state of affairs into being. When we approach the act of judgment this way, we are not as fearful as we are impatient for the moment when we will have decided and we move on. When these two approaches to judgment are identified with the U.S. capital punishment system’s preoccupation with finality, what strikes me is how time is conceived as a problem and this problem is transposed into a problem of certainty. In the first instance, judgment is indefinitely deferred until one is master of what one decides. In the second, judgment is rushed

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to control the advent of what comes next. In both cases, the end is a beginning and the beginning is an end, but in both cases the double nature of action—the way that it opens and closes at once, in the same gesture— is repressed. In the first instance, the focus is on finality as an absolute end over which one seeks control; in the second, the focus is on finality as the certain condition of beginning which similarly, one seeks to command. When we appreciate judgment as an act in Furman v. Georgia, or in any example for that matter, we are in a better position to notice these different approaches. We are also in a better position to begin to cultivate a sense of the time it takes to judge. This time is not captured in any of the descriptions of judgment I have reviewed above. For instance, recall the moment in Kennedy’s description of judgment when he says “my time will run out, and I’ll just have to decide.” Kennedy emphasizes the finality of this moment. Time has or will always eventually run out. To take full advantage of appreciating judgment as an act, I suggest we engage this time differently by trying to follow the advice Machiavelli offers the prince when he counsels the prince to heed “the temper of the times.” With this counsel, Machiavelli instructs the prince to cultivate a relationship to time that respects the moments that pass as a stream rather than an essence. This is clear when Machiavelli compares fortune to a raging river. According to Machiavelli, this river may flood the plains, tear up trees, and tear down buildings—sending men running because they cannot stand up to this onslaught in any way. Yet Machiavelli does not recommend that the prince submit to this power. Nor, however, does he suggest that the prince try to subject fortune to his will. Instead, Machiavelli makes a simple observation. While the power of the river is overwhelming, he notes that “this does not mean that men cannot take countermeasures while the weather is still fine, shoring up dikes and dams, so that when the waters rise again, they are carried off in a channel or confined where they do no harm.”103 In short, Machiavelli observes several moments—the time when men are running for their lives, the period when the weather is fine, and the time when the waters rise again—thereby remarking on the passage of time, but he resists any temptation to arrest this flow or to imply that it might ever be halted. Instead, he advises that we take advantage of it, to the extent that we are able, so that despite our powerlessness before the forces of nature, we are not bereft. In brief, Machiavelli helps us see that time, like action, is

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irreversible but fecund. Every moment is unique and irreplaceable, and what we do in it is irrevocable; yet there is always another moment unlike it to come. Nietzsche might ascribe this kind of sensibility to time to one who “thinks and lives g¯ang¯asrotagati.”104 As Walter Kaufmann explains, gati means gait; srota, the current of a river, and ganga is the river Ganges; thus g¯ang¯asrotagati means “as the current of the Ganges river moves.”105 Nietzsche contrasts this flowing style of thinking and living with that of those who move as tortoises do, k¯urmagati, or as frogs do, mand u¯ kagati, purposely using obscure words to demonstrate the difficulty of being understood by people whose style of language has an unfamiliar “tempo.”106 In this way, Nietzsche, like Machiavelli, calls attention to the possibility of engaging time differently. And also like Machiavelli, Nietzsche encourages us to cultivate ourselves and our experiences so that we might be filled with delight rather than fear at the thought of that which is coming to be. In Daybreak, Nietzsche calls the disposition he is encouraging a “state of consecration” and describes it in terms of pregnancy.107 According to Nietzsche, when pregnant “we know nothing of what is taking place, we wait and try to be ready. At the same time, a pure and purifying feeling of profound irresponsibility reigns in us almost like that of the auditor before the curtain has gone up—it is growing, it is coming to light: we have no right to determine its value or the hour of its coming.”108 In brief, we are powerless to determine what is to come. Yet we can still prepare for it. Indeed, Nietzsche says “we prepare everything for it so that it may come happily into the world: not only everything that may prove useful to it but also the joyfulness and laurel-wreaths of our soul.”109 Of course, everything we prepare for is veiled, ominous. What fortuna brings cannot be predicted. But Nietzsche does not deny the possibility that what is coming is perilous. Instead, he proposes, “even if the outcome is dangerous and evil: let us not be less reverential towards that which is coming to be than worldly justice is, which does not permit a judge or an executioner to lay hands on one who is pregnant!”110 To act in the state of consecration Nietzsche describes is difficult. What is more, if we take Machiavelli’s advice to the prince and begin to cultivate this disposition and a sensibility attuned to the perception that each moment is one of a kind, never seen before and never to be seen again, the temptation to judge in terms of a two-world metaphysics is not

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necessarily overcome. For if we believe that we have finally made peace with the ebb and flow of life, the plurality and change that philosophers have always opposed, by simply observing that every moment of life comes into being and passes away, we can easily find ourselves involved in another piece of “gloomy and exceedingly responsible business.”111 That is to say, the more we come to value life because we come to conceive of it as an experience that cannot be recovered—an experience of absolute loss not unlike death—the more likely it is we will simply replace one preoccupation with finality with another. The risk of this reversal rather than revaluation of the value of life is apparent today as states around the country find fault with their death penalty statutes and the way in which executions are conducted. Already arguments for and against the practice of capital punishment are being made for and against the sentence of life without possibility of parole.112 This makes sense as the moment when life is appreciated to be a penalty of supersensible rather than vital significance, there is no longer a basis for distinguishing between the claims “death is different” and “life is different.” To preserve the difference, or perhaps to realize it for the first time, we must begin by paying more attention to our experience, the fact that we confront “enigmatic decisions and new paths” every time we judge and yet somehow we go on.113

Notes

chapter 1 1. Trop v. Dulles, 356 U.S. 86 (1958) at 99. 2. Furman v. Georgia, 408 U.S. 238 (1972). 3. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). Contrast with Woodson v. North Carolina, 428 U.S. 280 (1976). 4. Carol S. Steiker, “Capital Punishment and American Exceptionalism,” 81 Oregon Law Review 97 (2002). The ten theories of American exceptionalism that Steiker identifies and discusses attribute the discrepancy between the United States and countries in Western Europe in the use of capital punishment to (1) The homicide rate in the United States; (2) The strength of public opinion in favor of capital punishment in the United States; (3) The salience of crime as a political issue in the United States; (4) The populism of American political institutions and American political culture, as compared to the elitism of European politics; (5) The fact of lay participation in the criminal justice system and the direct political accountability of institutional actors in the United States; (6) The fact that criminal law-making power and law enforcement in the United States are understood and experienced as primarily a state and local concern; (7) Southern exceptionalism due to the distinctive subculture of violence, and/or resistance to the civil rights movement in the 1950s and 1960s; (8) European exceptionalism due to events of the twentieth century, specifically two world wars fought on European soil and the bloody rules of Hitler, Mussolini, and Stalin; (9) American cultural exceptionalism due to a subculture of violence fuelled by the media and easy access to guns; and (10) The historical contingency of the failure to abolish capital punishment in the United States. 5. The populism of American politics is a feature of several of the theories Steiker discusses. One such theory focuses on the fact that crime is a politically salient issue in the United States in a way that it is not in Europe. As capital punishment is identified with a “law and order” stance, politicians embrace the death penalty. This embrace in turn reinforces the association of support for capital punishment and being tough on crime. It is not that people in the United States are more bloody-minded than people in Europe: according to surveys, a majority of Europeans actually support capital punishment. The difference is that in the

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United States institutional actors are directly accountable to the public in a way they are not in Europe. Institutional actors in the United States are thus more likely to defer to the sentiments of the majority for reasons of political expediency. They defer to the sentiments of the majority for other reasons as well, in particular, reasons of political culture. Americans understand their elected officials to represent them and their interests. Politicians abide by and reinforce this understanding, projecting images of themselves as “regular” people who share the sentiments of their countrymen. By contrast, European political leaders are understood to have special political knowledge and experience that puts them in the position to make decisions and lead the public. Another theory that draws on American populism to account for the persistence of capital punishment in the United States focuses on the fact that in America local and state governments rather than national systems are responsible for making criminal law and enforcing it. 6. Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda (Cambridge, U.K.: Cambridge University Press, 1986). Zimring and Hawkins also suggest that popular opinion was not as critical of the steps taken by the Supreme Court toward the eventual abolition of capital punishment as it may have appeared at the time (47). 7. Walter Benjamin, “Critique of Violence,” Reflections: Essays, Aphorisms, Autobiographical Writings, ed. Peter Demetz, trans. Edmund Jephcott (New York: Schocken Books, 1986) 277–300, 286. Benjamin also says that in the decision to sentence someone to death, “the origins of law jut manifestly and fearsomely into existence.” For two very different kinds of discussion of what comes into view about the origins of law in death penalty decisions, see Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001) and Timothy V. Kaufman-Osborn, From Noose to Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan Press, 2002). 8. In Furman v. Georgia, Justice Potter Stewart states: “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” 408 U.S. at 305. 9. For instance, van den Haag observes that we do not demand proof of the deterrent effect of other penalties as we do of death. Ernest van den Haag, Punishing Criminals: Concerning a Very Old and Painful Question (Lanham, MD: University Press of America, 1991) 215. 10. 428 U.S. at 187. 11. According to the Death Penalty Information Center, since 1976 the Court has heard roughly five cases a year that touch on the death penalty. Some of these

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are not death penalty cases per se, but have an effect on death penalty cases, like search and seizure guidelines, habeas rulings, etc. Other cases may concern defendants who have received death sentences but the issues considered by the Court may have nothing to do with their punishment. Rion Dennis, e-mail to the author, January 19, 2006. 12. Finality is an important value in the criminal justice system. As Justice John Harlan observes, “No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.” Mackey v. United States, 401 U.S. 667 (1971) at 691. In capital cases, the value of finality is more complicated because of the unique character of the penalty. Unlike a term of years, once a death sentence is carried out, it is no longer possible to adjust the punishment in light of any decisions that might be made about outstanding legal issues. Consequently, a death sentence cannot be carried out by the State while such issues remain. Direct review by federal courts of “nonfrivolous” claims of constitutional error in capital cases recognizes and tries to compensate for the fact that fallible human beings make decisions about guilt or innocence, life or death. Still, when the process of direct review comes to an end, a presumption of finality and legality attaches to the conviction and sentence. Barefoot v. Estelle, 463 U.S. 880 (1983) at 887. See Chapter 7. 13. Max Weber, “Politics as a Vocation,” From Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946) 77–128, 78. 14. According to Weber, there are three basic legitimations of domination. Traditional legitimation is based upon the authority of ancient practices of recognition and obedience (79). Charismatic legitimation is based on the authority that inheres in the qualities of an extraordinary individual. Finally, legal legitimation is based on the strength of a belief in the validity of legal statute and “functional ‘competence’ based on rationally created rules” (79). Weber claims that these three types of legitimation are “pure types” rarely found in reality. Nevertheless, when we ask what makes obedience, even out of fear, “legitimate,” we seek one of these legitimating discourses to establish the “inner justification” of a particular act of domination. 15. See Jean-François Lyotard and Jean-Loup Thébaud, Just Gaming, trans. Wlad Godzich (Minneapolis: University of Minnesota Press, 1985). 16. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale. (London: Penguin, 1990). In presenting Nietzsche’s history of metaphysics in Twilight of the Idols as a history of jurisprudence, I am deeply indebted to Marianne Constable. See Marianne Constable, “Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law,” 19 Law & Social Inquiry 551 (1994).

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17. While my reading of Nietzsche’s history of metaphysics in Twilight of the Idols is influenced by Martin Heidegger’s interpretation in Nietzsche: Volume 1: The Will to Power as Art, trans. David Farrell Krell (San Francisco: HarperCollins, 1991), particularly in the chapter, “Nietzsche’s Overturning of Platonism,” I do not mean to suggest, as Heidegger does perhaps, that Nietzsche’s philosophy is centered on a single central theme or thesis presented in this history. See Alan D. Schrift, Nietzsche and the Question of Interpretation: Between Hermeneutics and Deconstruction (New York: Routledge, 1990) chapters 1 and 2. 18. Philippe Nonet, “Judgment,” 48 Vanderbilt Law Review 987 (1995) 987. 19. McGautha v. California, 402 U.S. 183 (1971). 20. According to Nietzsche, “the concept of substance is a consequence of the concept of subject.” In other words, the immutable essence posited of philosophy—“truth,” “reality,” “substantiality”—is an effect not a cause of our belief in a unity underlying the different impulses of the highest feelings of reality, feelings such as power, logic, and coherence of experience. What is more, Nietzsche states that the essence metaphysics seeks through reason to discover was invented to service our needs, specifically our need for security and our need for quick understanding. See Friedrich Nietzsche, The Will to Power, trans. Walter Kaufmann and R. J. Hollingdale (New York: Vintage, 1968) §485, §513. 21. Nietzsche, Twilight of the Idols/The Anti-Christ 47. 22. Friedrich Nietzsche, Beyond Good and Evil: Prelude to a Philosophy of the Future, trans. Walter Kaufmann (New York: Vintage, 1966) §2. 23. Nietzsche, Twilight of the Idols/The Anti-Christ 45. 24. Plurality, deception, appearance, and disappearance contradict identity and duration. Indeed, becoming is a “refutation” of being. Nietzsche, Twilight of the Idols/The Anti-Christ 45. 25. Nietzsche’s own commitment to this opposition has been critically observed. For example, see Eugen Fink, Nietzsche’s Philosophy, trans. Goetz Richter (London: Continuum, 2003). Yet Nietzsche does maintain that being and becoming, at least as creative forces, are more ambiguous than such an opposition would suggest. See Friedrich Nietzsche, The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1974) §370. See also Friedrich Nietzsche, Human, All Too Human: A Book for Free Spirits, trans. Marion Faber and Stephen Lehmann (Lincoln: University of Nebraska Press, 1984) §1. 26. To avoid falling into this trap, Nietzsche’s history of metaphysics and its failure to grasp what is, is genealogical rather than historical. Schrift calls it an “underground” approach, a “psycho-genealogical inquiry” that draws us to “reflect upon what was ultimately willed in the positing of certain values as valuable.” Schrift, Nietzsche and the Question of Interpretation 173. 27. Nietzsche, Twilight of the Idols/The Anti-Christ 45. 28. Nietzsche, Twilight of the Idols/The Anti-Christ 43.

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29. According to Nietzsche, the Greeks are the “most humane people of ancient time” because in their highest and noblest capacities, they are “all nature.” In “Homer on Competition,” the trait Nietzsche focuses on is cruelty, “a tiger-like pleasure in destruction” that makes us shudder. To understand this urge, Nietzsche claims we must start with the point that the Greek genius not only tolerates it but considers it justified. The Greeks recognize struggle and the joy of victory. According to Nietzsche, “nothing severs the Greek world so sharply from ours as the resultant colouring of individual ethical concepts.” Friedrich Nietzsche, “Homer on Competition,” trans. Carol Diethe, On the Genealogy of Morality, ed. Keith AnsellPearson (Cambridge, U.K.: Cambridge University Press, 1994) 187–194. 30. According to Nietzsche, the ugly is understood as a sign and symptom of degeneration. The premises of this conclusion have been accumulated in the instincts. Thus: “Every token of exhaustion, of heaviness of age, of weariness, every kind of unfreedom, whether convulsive or paralytic, above all the smell, colour and shape of dissolution, of decomposition, though it be attenuated to the point of being no more than a symbol—all this calls for the same reaction, the value judgement ‘ugly.’” Nietzsche, Twilight of the Idols/The Anti-Christ 90. 31. Nietzsche, Twilight of the Idols/The Anti-Christ 43. 32. Nietzsche, Twilight of the Idols/The Anti-Christ 44. 33. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 34. In the “Phaedo,” Socrates speaks to his companion Simmias of Thebes about what happens to the newly dead. Socrates tells Simmias that those who lived a life of surpassing holiness, specifically those who purified themselves by philosophy, live forever in a place of such beauty that it cannot be described. Plato, “Phaedo,” The Last Days of Socrates, trans. Hugh Tredennick and Harold Tarrant (London: Penguin, 1993) 107–191, 181. 35. Nietzsche’s failure to identify a cause or a precipitating event that sets this history in motion in effect sets up the reader for an argument about causality that Nietzsche makes later in Twilight of the Idols. Briefly, in the section entitled “The Four Great Errors,” Nietzsche argues that causality is a projection of “inner facts” onto the world, the expression of a “cause-creating drive” that seeks reasons for feelings so that we can always explain how we feel with reference to some other quality or purpose. If we apply this argument to ourselves, it can suggest that our desire to identify a cause of the history of metaphysics is nothing more than a wish to control feelings of insignificance or insecurity and maintain our self-regard. Nietzsche, Twilight of the Idols/The Anti-Christ 58–65. 36. Nietzsche, Twilight of the Idols/The Anti-Christ 53. 37. Nietzsche, Twilight of the Idols/The Anti-Christ 44. 38. Nietzsche, Twilight of the Idols/The Anti-Christ 43. 39. “The problem of Socrates” in Nietzsche’s thought is a topic of some controversy. The most influential interpretation of Nietzsche’s ambivalent relationship

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to “the philosopher” is Walter Kaufmann’s. See Walter Kaufmann, Nietzsche: Philosopher, Psychologist, Antichrist (Princeton, NJ: Princeton University Press, 1968). 40. Nietzsche, Beyond Good and Evil §212. 41. Nietzsche, Beyond Good and Evil §212. 42. Friedrich Nietzsche, On the Genealogy of Morality, trans. Carol Diethe, ed. Keith Ansell-Pearson (Cambridge, U.K.: Cambridge University Press, 1994) 62. 43. Nietzsche, On the Genealogy of Morality 62. 44. The question of the legitimacy of death sentences may be and has been framed in different ways. Historically, abolitionists have argued that death sentences are never legitimate as they are always immoral. More recently, the legitimacy of death sentences has been called into question on the grounds that they threaten not only the rational premises of the state (the argument that no one would accept a social contract that entitled the state to take her life), but the philosophical ones (the argument that the irrationality of death sentences threatens to undermine the distinction between legal and extralegal violence and thus to destroy respect for law in the United States. See, for instance, Austin Sarat, “Abolitionism as Legal Conservativism: The American Bar Association, the Death Penalty, and the Continuing Anxiety About Law’s Violence,” ) and the financial ones (the argument that capital punishment is bankrupting the criminal justice system. See, for instance, James S. Liebman, Jeffrey Fagan, and Valerie West, “A Broken System: Error Rates in Capital Cases 1973–1995,” ). 45. Famously, Socrates conducted his investigations in Athens and rarely went outside the city walls. In the “Crito,” Socrates imagines the Laws speaking to him: “Socrates, we have substantial evidence that you are satisfied with us and with the State. Compared with all other Athenians, you would not have been so exceptionally much in residence if it had not been exceptionally pleasing to you. You have never left the city to attend a festival—except once to the Isthmus—nor for any other purpose except on some military expedition; you have never traveled abroad as other people do, and you have never felt the impulse to acquaint yourself with another country or other laws; you have been content with us and with our city.” Plato, “Crito,” The Last Days of Socrates, trans. Hugh Tredennick and Harold Tarrant (London: Penguin, 1993) 76–92, 89. 46. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 47. According to Heidegger, it is only at this stage that there are really two worlds. See Heidegger, Nietzsche: Volume I 204. Also see Schrift, Nietzsche and the Question of Interpretation 47. 48. Note on faith: “If one considers what need people have of an external regulation to constrain and steady them, how compulsion, slavery in a higher sense, is

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the sole and final condition under which the person of weaker will, woman especially, can prosper; then one also understands the nature of conviction, ‘faith.’ ” Nietzsche, Twilight of the Idols/The Anti-Christ 185. 49. Nietzsche, Twilight of the Idols/The Anti-Christ 129. 50. Nietzsche, Twilight of the Idols/The Anti-Christ 137. 51. Nietzsche, Twilight of the Idols/The Anti-Christ 143. 52. Nietzsche, Twilight of the Idols/The Anti-Christ 168. 53. Nietzsche, Beyond Good and Evil §200. As Jane Bennett reminds me, Augustine epitomizes this human being with his insistence in Confessions that the self has a will divided against itself and his view that the true world, the “City of God,” is not knowable by man; indeed, the claim that this world is intelligible is the original sin. Augustine, Confessions, trans. R. S. Pine-Coffin (London: Penguin, 1961). 54. Nietzsche, Beyond Good and Evil §200. 55. Nietzsche, Twilight of the Idols/The Anti-Christ 153. 56. Nietzsche, The Gay Science §357. 57. Nietzsche, Twilight of the Idols/The Anti-Christ 149. 58. Nietzsche, Twilight of the Idols/The Anti-Christ 158. 59. Nietzsche, The Gay Science §357. 60. Nietzsche, The Gay Science §357. 61. Nietzsche, The Gay Science §357. 62. Nietzsche, The Gay Science §357. In Twilight of the Idols, Nietzsche claims that the entire realm of morality and religion falls under the category of imaginary causes: We want to have a reason for feeling as we do, so we attribute the cause of unpleasant feelings to beings hostile to us (evil spirits), to actions we cannot approve (“sin”), or to punishments for something we should not have done. We assume that pleasant feelings are caused by trust in God; consciousness of good actions (good conscience); or faith, hope, and charity (the Christian virtues) (63). In brief, we foist a cause on to a sensation, mistaking what Nietzsche suggests is the real effect (evil spirits, for instance) for the actual cause (unpleasant feelings, in this case.) 63. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 64. The voice of conscience says, “I ought never to act except in such a way that I can also will that my maxim should become a universal law.” Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New York: Harper & Row, 1964) 70. 65. Nietzsche, The Gay Science §357. 66. Nietzsche, Twilight of the Idols/The Anti-Christ 60. 67. Kant, Groundwork of the Metaphysic of Morals 62, 69. Nietzsche explicitly criticizes the notion that one can examine one’s consciousness and find there all

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the “antecedentia” of an action that guarantee the will as cause, let alone that guarantee the will causes an action that is “right.” “Your judgment ‘this is right’ has a pre-history in your instincts, likes, dislikes, experiences, and lack of experiences. ‘How did it originate there?’ you must ask, and then also: ‘What is it that impels me to listen to it?’” Nietzsche, The Gay Science §335. 68. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 69. Nietzsche, Beyond Good and Evil §14. 70. Nietzsche, Beyond Good and Evil §14. 71. Nietzsche, The Gay Science §335. 72. Nietzsche, The Gay Science §347. 73. Nietzsche, The Gay Science §373. 74. Nietzsche, Human, All Too Human §128. 75. Friedrich Nietzsche, The Will to Power, §30. 76. Nietzsche, The Will to Power §30. 77. Nietzsche, The Will to Power §30. 78. Nietzsche, Twilight of the Idols/The Anti-Christ 50-51. 79. Nietzsche, Twilight of the Idols/The Anti-Christ 162. 80. Nietzsche, Twilight of the Idols/The Anti-Christ 88. 81. Nietzsche, Twilight of the Idols/The Anti-Christ 88. 82. Nietzsche, Twilight of the Idols/The Anti-Christ 88. 83. Nietzsche, The Will to Power §33. 84. Nietzsche, Twilight of the Idols/The Anti-Christ 107. 85. Nietzsche, The Will to Power §38. 86. Nietzsche, The Will to Power §37. 87. Nietzsche, Twilight of the Idols/The Anti-Christ 99. 88. Nietzsche, The Will to Power §247. 89. Nietzsche, The Will to Power §247. 90. Nietzsche, Beyond Good and Evil §10. 91. Nietzsche, Beyond Good and Evil §10. 92. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 93. Nietzsche, Beyond Good and Evil §10. 94. Nietzsche, Beyond Good and Evil §260. 95. Nietzsche, Beyond Good and Evil §10. 96. Michel Foucault, “Nietzsche, Genealogy, History,” Language, CounterMemory, Practice: Selected Essays and Interviews, ed. Donald F. Bouchard (Ithaca, NY: Cornell University Press, 1977) 139–164, 144. 97. 402 U.S. at 196. 98. 402 U.S. at 197. 99. 402 U.S. at 204. 100. 402 U.S. at 208. 101. 402 U.S. at 205.

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102. I am suggesting that the jury’s sentencing decision in a capital case might be conceived in the terms Marianne Constable uses to describe pre-fourteenthcentury mixed jury verdicts. See Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994) 2. 103. Nietzsche, The Will to Power §428. 104. Nietzsche, The Will to Power §430. 105. Nietzsche, The Will to Power §430. 106. 408 U.S. at 249, 277, 281, 291, 293, 295, and 313. 107. 408 U.S. at 309–310. 108. Socrates recounts this episode in the “Apology.” Plato, “Apology,” The Last Days of Socrates, trans. Hugh Tredennick and Harold Tarrant (London: Penguin, 1993) 37–67, 42–44. 109. Robert Johnson, Death Work: A Study of the Modern Execution Process (Belmont, CA: Wadsworth Publishing Co., 1998). 110. Ironically, according to Johnson, the procedures we use to hide the reality of the death penalty from ourselves dehumanize the criminal, which enables us to continue supporting a practice that is, Johnson says, “utterly out of step with our current standards of decency and has no place in our justice system” (53). 111. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1977). 112. Foucault, Discipline and Punish 9. 113. Robert Cover, “Violence and the Word,” 95 Yale Law Journal 1601 (1986). 114. In Capital Punishment and the American Agenda, Zimring and Hawkins suggest that it is actually incorrect to describe the Supreme Court’s decision in Furman v. Georgia as sudden. According to Zimring and Hawkins, the decision should be viewed in light of an abolition movement started in the United States over one hundred and twenty-five years earlier and the more recent decline of the death penalty in the rest of the Western world. They also note that there had been no executions in America during the five years prior to the Court’s decision in Furman. Thus for Zimring and Hawkins, the real question is why the Supreme Court waited so long to invalidate the death penalty. Of course, this observation only reminds us that no answer for why the Court decides as it does in Furman is really offered. 115. 408 U.S. at 403. In addition, Burger encourages these bodies to act with “flexibility and discriminating precision” so that any penalty schemes they come up with will stand up to judicial scrutiny, thus expressing the expectation that some may indeed succeed. 116. Margaret Jane Radin, “Cruel Punishment and Respect for Persons: Super Due Process for Death,” 53 Southern California Law Review 1143 (1980). 117. Zant v. Stephens, 462 U.S. 862 (1982).

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118. Tison v. Arizona, 481 U.S. 137 (1987). 119. Payne v. Tennessee, 501 U.S. 808 (1990). 120. For example, according to the philosopher Hugo Bedau, we owe the distinction between first and second degree murder to the power of jury nullification. Mandatory death penalties, in particular, made it difficult for prosecutors to obtain convictions in cases where a conviction was tantamount to a death sentence. When death appeared to a particular jury to be disproportionate to the gravity of the crime committed by the defendant in the case, the jury had no other option but to find the defendant not guilty. To avoid jury nullification, or even more significantly, challenges to the death penalty itself, in 1793, Pennsylvania introduced degrees of murder, reserving capital punishment for those convicted of first degree murder only. Hugo Adam Bedau, ed., The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997) 4. 121. See, for instance, Alan Scheflin and Jon Van Dyke, “Jury Nullification: The Contours of a Controversy,” 43 Law and Contemporary Problems 51 (Autumn 1980); Irwin A. Horowitz and Thomas E. Willging, “Changing Views of Jury Power: The Nullification Debate 1787–1988,” 15 Law and Human Behavior 165 (1991); Andrew D. Leipold, “Rethinking Jury Nullification,” 82:2 Virginia Law Review 253 (1996); and, Nancy J. King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” 65 University of Chicago Law Review 433 (1998). 122. Nietzsche, Beyond Good and Evil §4. chapter 2 1. Furman v. Georgia, 408 U.S. 238 (1972). 2. Gregg v. Georgia, 428 U.S. 153 (1976). 3. Woodson v. North Carolina, 428 U.S. 280 (1976). 4. Aristotle, Politics, trans. T. A. Sinclair, rev. Trevor J. Saunders (New York: Penguin, 1981) 1280a7. 5. In 1976, the Supreme Court considered cases from several different states to determine whether the revised death penalty statutes in those states addressed the concerns raised by the Court in Furman v. Georgia. The Court found that statutes in Georgia, Florida, and Texas did so in a satisfactory manner. Since 1976, other states revising their death penalty statutes have often modeled their reforms on Georgia’s statutes, while the systems set up in Florida and Texas remain relatively peculiar to them. Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). 6. Some states, such as California, already divided their capital trials in this manner. After Gregg v. Georgia, this separation was not legally required but nevertheless became common. 7. 428 U.S. at 190.

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8. 428 U.S. at 192. 9. Statutory aggravating circumstances are circumstances defined by statute— that is, by a formal written enactment of a legislative body—as increasing the guilt or enormity of the crime with which they are associated. The ten statutory aggravating circumstances specified by Georgia in 1976 are as follows: (1) The offense was committed by a person with a prior record of conviction for a capital felony, aggravated battery, or burglary or arson in the first degree; (2) The offense was committed while the offender was engaged in the commission of another capital felony, aggravated battery, or burglary or arson in the first degree; (3) The offender by his act knowingly created a great risk of death to more than one person in a public place; (4) The offender committed the offense for the purpose of receiving money or any other thing of monetary value; (5) The victim was a judicial officer, former judicial officer, district attorney, solicitor, former district attorney, former solicitor on duty, or killed because of his official duty; (6) The offender caused or directed another to commit murder or did so himself as an employee of another; (7) The offense was outrageously or wantonly vile, horrible, or inhuman; (8) The offense was committed against a police officer, corrections employee, or fireman engaged in performing his official duties; (9) The offender was in or had escaped from lawful custody of a police officer or place of lawful confinement; and (10) The offense was committed to avoid such custody or confinement of the offender or another (abbreviated from text of statute reproduced in 428 U.S. at 165–166). In Florida, both aggravating and mitigating circumstances are legislatively specified. The jury is directed to consider whether aggravating circumstances outweigh mitigating circumstances in order to come to a decision. The jury’s verdict is determined by majority; however, it is only advisory. The actual sentence is determined by a trial judge. In Texas, during the sentencing phase of a capital trial the jury is asked two (or, when rendered appropriate by the facts of the case, three) questions: (1) Was the killing committed deliberately or with the reasonable expectation that death would occur? (2) Is it likely the defendant will commit further criminal acts of violence and therefore constitute a continuing threat to society? and, when appropriate, (3) Was the conduct of the defendant in the killing unreasonable? If the jury finds beyond a reasonable doubt that the answer to all of these questions is “yes,” then the defendant is sentenced to die. 10. The state of Louisiana also sought to have a mandatory death penalty. See Roberts v. Louisiana, 428 U.S. 325 (1976). 11. 428 U.S. at 305. 12. 428 U.S. at 305. 13. Oxford English Dictionary, 1989 ed., s.v. “Reliability.” 14. According to Marianne Constable, the law’s investment in reliability betrays a concern “with the accuracy and consistency of results that legitimate the procedures by which they are reached.” In so saying, Constable suggests that it is

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not procedures that legitimate results but results that legitimate procedures. In brief, when results are consistent and accurate, the system is legitimated. Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994) 46. 15. Lockett v. Ohio, 438 U.S. 586 (1978). 16. 438 U.S. at 597. 17. These mitigating circumstances are as follows: (1) The victim had induced or facilitated the offence; (2) It was unlikely the defendant would have committed the offense but for the fact that the defendant “was under duress, coercion, or strong provocation”; and (3) The offense was “primarily the product of psychosis or mental deficiency” (438 U.S. at 593–4). 18. 438 U.S. at 604. 19. 438 U.S. at 605. 20. 438 U.S. at 605. 21. 438 U.S. at 605. 22. 438 U.S. at 604. 23. Eddings v. Oklahoma, 455 U.S. 105 (1982) at 119. 24. 455 U.S. at 119. 25. Margaret Jane Radin, “Cruel Punishment and Respect for Persons: Super Due Process for Death,” 53 Southern California Law Review 1143 (1980) 1159. 26. Radin 1157. 27. Radin 1157. 28. Radin 1159. Radin defends this presuppostion in a footnote in which she argues that the principles on which a moral judgment is made come from “deep or institutional consensus in our system about the relationship of the decisionmaking process to the gravity of the threatened invasion of personal interests in light of the respect due to persons” (1177, footnote 109). 29. Radin 1148. 30. Radin 1156. 31. See Radin 1156, footnote 44. 32. 438 U.S. at 605. 33. See, for instance, concurring opinion of Justice Potter Stewart, 408 U.S. at 308. 34. This philosophy of retribution is elaborated by Immanuel Kant in The Metaphysics of Morals. See Immanuel Kant, The Metaphysics of Morals (1797), trans. Mary Gregor (Cambridge, U.K.: Cambridge University Press, 1991). Kant’s identification of retribution with an eye for an eye (lex talionis) is not universally accepted, however. For instance, in his account of retributivism as the view that “punishment is justified by the moral culpability of those who receive it,” law professor Michael Moore claims a separate argument is necessary to answer the “how much” and “what type” questions. See Michael S. Moore, “The Moral Worth of

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Retribution,” Punishment and Rehabilitation, ed. Jeffrie G. Murphy (Belmont, CA: Wadsworth Publishing Co., 1995) 94–130, 94. 35. 408 U.S. at 290. 36. See concurring opinion of Justice William Brennan, 408 U.S. at 289–290. 37. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 50. 38. 455 U.S. at 119. 39. Radin 1156. In a footnote, Radin cites an article by Cederblom and Blizer in which they note that, even if we could be sure what kinds of institutions characterize an ideally just society, we could not be sure that such institutions should be brought about in a less-than-just society. Those who are punished have often been the victims of injustice, they observe. In other words, to judge the blameworthiness of an individual accurately, it may not be appropriate to simply consider the aggravating and mitigating factors presented at trial, as the structures that constitute these factors as such may themselves be untrustworthy. For an analysis of the U.S. capital punishment system that calls attention to the assumptions and injustices that inform the formulation of aggravating factors, see Elizabeth Rapaport, “Some Questions About Gender and the Death Penalty,” 20 Golden Gate University Law Review 479 (1990). 40. Indeed, the Supreme Court does not demand a demonstration of the system’s reliability. The sentencing statute upheld in Gregg v. Georgia includes an automatic review by the Georgia Supreme Court of every death sentence imposed in the state to check not only that every case is carried out properly but that the outcome of every case is in keeping with the outcome of every similar case. But in Pulley v. Harris (1984), the Supreme Court holds that proportionality reviews are not necessary in capital cases. To the extent that a “reliable” sentencing scheme would be one that gives the same result on successive trials, the Court could have required states to test the trustworthiness of their sentencing schemes. Instead, the reliability the Court requires of the capital punishment system is a matter of faith. See Pulley v. Harris, 465 U.S. 37 (1984). 41. 455 U.S. at 110. 42. Aristotle 1280a7. 43. Aristotle 1280a7. 44. 455 U.S. at 112. 45. Radin 1151. 46. Radin 1155. 47. Radin 1155. 48. The paradox engendered by Powell’s description of the relationship between the twin objectives of justice also defies a strictly logical resolution. That is to say, the specific details or unique features of a particular case do not necessarily manifest abstract principles or generalizations. Nor do general statements, such as

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“all men are equal,” indicate the actual existence of the specifics about which they generalize. Thus, conclusions may neither be induced nor deduced from the relationship between the twin objectives of justice. 49. Walton v. Arizona, 497 U.S. 639 (1990) at 668. 50. In fact, Scalia does not so much argue for the invalidity of the individual consideration line of cases as discredit it by drawing analogies between it and figures of political and moral malevolence. For example, Scalia claims that to acknowledge the tension between the two lines of cases is “rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War II” (664). As if he has not made his point he adds: “to refer to the two lines as pursuing ‘twin objectives’ . . . is rather like referring to the twin objectives of good and evil” (664). Thus Scalia associates the individual consideration line of cases with the Nazis and with “evil.” 51. 497 U.S. at 672–673. 52. Callins v. Collins, 510 U.S. 1141 (1994). 53. 510 U.S. at 1142. 54. 510 U.S. at 1142. 55. This argument is fallacious in so far as the incompatibility of the two commands of equal treatment and individual consideration tells us nothing about the constitutionality or the truth value of either one. 56. 497 U.S. at 673. While Scalia is generally critical of the Court’s reasoning in Furman v. Georgia, he is willing to adhere to the precedent established by the Furman line of cases. According to Scalia in Walton v. Arizona, the text of the Eighth Amendment supports but does not necessarily mean that a traditional form of punishment that is rarely imposed may be prohibited on the grounds that that is “unusual” (670). In Walton v. Arizona, Scalia also says the precedent set by Furman is “to hold that when a State adopts capital punishment for a given crime but does not make it mandatory, the Eighth amendment bars it from giving the sentencer unfettered discretion to select the recipients but requires it to establish in advance, and convey to the sentencer, a governing standard” (671). 57. Immanuel Kant, The Critique of Judgement (1790), trans. James Creed Meredith (Oxford, U.K.: Clarendon Press, 1991) 18. 58. One example of a determinant judgment is a syllogism. The major premise of the syllogism is a statement of principle or law, such as “All men are mortal.” The minor premise is a statement about a particular thing, in this famous example a particular person: “Socrates is a man.” The conclusion is a function of the subordination of the particular, Socrates, to the universal, men are mortal. The only conclusion to be drawn is a determinant judgment, “Socrates is mortal.” 59. Kant 82. 60. 510 U.S. at 1144.

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61. 510 U.S. at 1144–1145. 62. 510 U.S. at 1145. chapter 3 1. Walton v. Arizona, 497 U.S. 639 (1990). 2. Immanuel Kant, The Critique of Judgement (1790), trans. James Creed Meredith (Oxford, U.K.: Clarendon Press, 1991) 82. 3. In Kant’s words, “we assume a common sense as the necessary condition of the universal communicability of our knowledge, which is presupposed in every logic and every principle of knowledge that is not one of scepticism [sic]” (84). 4. Kant, The Critique of Judgement 82. 5. Werner Hamacher, “Lectio: De Man’s Imperative,” trans. Susan Bernstein, Reading De Man Reading, ed. Lindsay and Wlad Godzich (Minneapolis: University of Minnesota Press, 1989) 171–201, 193. 6. Robert Weisberg, “Deregulating Death,” 8 The Supreme Court Review 305 (1984). 7. McCleskey v. Kemp, 481 U.S. 279 (1987). 8. Godfrey v. Georgia, 444 U.S. 420 (1980). 9. 444 U.S. at 420. 10. 444 U.S. at 428–429. 11. 444 U.S. at 429. The Court finds this oversight particularly egregious as the Georgia Supreme Court had previously clarified the sense of this statutory aggravating factor and had said that it would insist upon this sense when it reviewed death sentences that were based on this statutory aggravating circumstance. 12. Gregg v. Georgia, 428 U.S. 153 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). 13. Weisberg 307. 14. Weisberg 307. 15. Zant v. Stephens, 462 U.S. 862 (1982); Barefoot v. Estelle, 463 U.S. 880 (1983); Barclay v. Florida, 463 U.S. 939 (1983); California v. Ramos, 463 U.S. 992 (1983). 16. Weisberg 343. 17. Weisberg 344. 18. 463 U.S. at 891. 19. 463 U.S. at 892. 20. Lockett v. Ohio, 438 U.S. 586 (1978). 21. 463 U.S. at 1004. 22. 463 U.S. at 1005. 23. Jurek v. Texas, 428 U.S. 262 (1976). 24. 463 U.S. at 1013.

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25. Weisberg 385. 26. Weisberg 385. 27. Weisberg 379. 28. Weisberg 391–392. 29. Weisberg 395. 30. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 50. 31. Jürgen Habermas, Justification and Application: Remarks on Discourse Ethics, trans. Ciaran P. Cronin (Cambridge, MA: MIT Press, 1993) 52. 32. See Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New York: Harper & Row, 1964). 33. Habermas 52. 34. Richard A. Lanham, A Handlist of Rhetorical Terms, 2d ed. (Berkeley: University of California Press, 1991), s.v., “metaphor.” 35. See Friedrich Nietzsche, “From ‘On Truth and Lie in an Extra-Moral Sense,’” The Portable Nietzsche, trans. and ed. Walter Kaufman (New York: Viking Press, 1954), 42–47. 36. State v. Wood, Utah, 648 P. 2d 71 (1982) at 84. 37. 648 P. 2d at 83. 38. People v. Brown, 726 P. 2d 516 (Cal. 1985) at 532. 39. Weisberg 385. 40. See Mark Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harvard Law Review 781 (1983). 41. Weisberg 353. 42. 462 U.S. at 901. 43. Marcia A. Widder, “Hanging Life in the Balance: The Supreme Court and the Metaphor of Weighing in the Penalty Phase of the Capital Trial,” 68 Tulane Law Review 1341 (1994). 44. The Baldus study is widely acknowledged to be one of the most impressive pieces of social scientific research ever offered in support of a claim being argued before the Supreme Court. The study examines over 2,000 murder cases that occurred in Georgia during the 1970s and subjects these data to extensive multipleregression analyses. Taking account of 230 variables that could explain disparities on nonracial grounds, the study makes two important findings. First, it determines that black defendants are 1.1 times as likely to receive a death sentence as other defendants: in other words, blacks are always more likely than whites to be sentenced to death. Second, the Baldus study finds that defendants charged with killing white victims are 4.3 times as likely to receive a death sentence as defendants charged with killing black victims: in brief, the criminal justice system values white lives—both of criminals and (especially) of victims—more highly than black ones. Gross and Mauro claim that the Baldus study actually presents a low

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estimate of the problem. In their words, “it paints a picture that is rosier than reality” (151). See Samuel R. Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing (Boston: Northeastern University Press, 1989) 142–152. 45. As many commentators have noted, it is questionable that such a demonstration might ever be possible, given that Powell does not criticize but quotes extensively from the opinion of the Court of Appeals for the Eleventh Circuit in his own McCleskey opinion. In its opinion on that case, the Court of Appeals says: “The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Assuming each result is within the range of discretion, all are correct in the eyes of the law.” Yet, later in the same opinion, the court observes, “[t]he Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . . This approach ignores the realities. . . . There are, in fact, no exact duplicates in capital crimes and capital defendants” (289–290, citations omitted). 46. For a discussion of the oscillation between candor and obfuscation in the Court’s McCleskey opinion, see Randall Kennedy, “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court,” 101 Harvard Law Review 1413 (1988). 47. 481 U.S. at 342. 48. 481 U.S. at 340. 49. 481 U.S. at 342. 50. Curiously, Blackmun and Stevens encourage the Court to take heart that it is only in the “mid-range” cases—those cases where “the decisionmakers have a real choice as to what to do” (Baldus cited at 287)—that bias seems to play a significant role in the sentencing outcome of a capital trial. 51. 481 U.S. at 365. 52. 481 U.S. at 367. 53. This is obvious when we look more closely at Brennan’s opinions in McCleskey v. Kemp. According to Brennan, the Baldus study indicates that the effort to eliminate arbitrariness is doomed to failure (320). However, Brennan cannot bring himself to say that this effort is doomed in any context other than that of the capital punishment system. In other words, he will not concede that the arbitrariness that afflicts the capital punishment system and that, in his view, renders it impossible to sentence anyone to death, may also afflict other moments of judgment in the criminal justice system. Brennan argues that “death is different.” More specifically, he argues that there is a uniquely high level of rationality required of the sentencing process in death penalty cases because of the severity of the punishment and that, consequently, “the degree of arbitrariness that may be adequate to render the death penalty ‘cruel and unusual’ punishment may not be adequate to invalidate lesser penalties” (340). By insisting on relative degrees of arbitrariness,

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Brennan suggests that judges and jurors are capable, despite evidence to the contrary, of overcoming or putting aside personal prejudices to judge. However, while it stands to reason that the consequences of racially biased judgment are not so severe when the sentencer is not choosing between life and death, the irrationality demonstrated in the most self-consciously rationalized sentencing procedure is presumably more, not less, likely to influence the sentencing decisions made following other, less rationalized, sentencing procedures. 54. For a discussion of unconscious racism in the legal system, see Charles R. Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” 39 Stanford Law Review 317 (1987). 55. 481 U.S. at 365. 56. In a statistical analysis, Gregory Russell shows that there is some evidence to suggest that those prospective jurors who make it through voir dire in a capital case are more likely than prospective jurors in other cases to be influenced by considerations of race in their sentencing decisions. In other words, Russell finds that the system used to screen potential jurors in capital cases does not effectively prevent people who are likely to discriminate from entering the jury pool. On the contrary, Russell’s study suggests that the voir dire system in capital cases actually favors such people. Thus, the very process of regulation to which the dissent in McCleskey would turn for assistance in reducing the influence of racial bias in sentencing decisions might end up exacerbating rather than alleviating the problem. See Gregory D. Russell, The Death Penalty and Racial Bias: Overturning Supreme Court Assumptions (Westport, CT: Greenwood Press, 1994). 57. Russell 73. The other four assumptions Russell identifies are: (1) that the process by which jurors are selected to serve on juries in capital trials eliminates bias; (2) that the questions potential jurors are asked during the voir dire process do not bias these jurors; (3) that those jurors who make it through the voir dire process are not biased by the process of voir dire itself; and (4) that juries will judge dangerousness properly (73–76). 58. Russell 11–12. 59. Russell 12. 60. Russell 114. 61. Russell 74. 62. 481 U.S. at 311. Citing Peters v. Kiff, 407 U.S. 493 (1972) at 503. 63. 481 U.S. at 311, citation omitted. 64. Weisberg 353. 65. Weisberg 395. Weisberg makes reference primarily to Robert Nozick, Philosophical Investigations (Cambridge, MA: Harvard University Press, 1981), and Bernard Williams, Moral Luck (Cambridge, U.K.: Cambridge University Press, 1981). 66. Louis Menand, “What is ‘Art’?” The New Yorker February 9, 1998: 40.

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chapter 4 1. Tison v. Arizona, 481 U.S. 137 (1987). 2. Enmund v. Florida, 458 U.S. 782 (1982). 3. 481 U.S. at 137. 4. 481 U.S. at 151. 5. For instance, how is it that perfectly normal people may be the unwitting perpetrators of heinous crimes? How do we respond to such offenses when our legal tradition holds that the more purposeful the criminal conduct, the more serious the offence, and the more severely it should be punished? 6. 481 U.S. at 149. 7. 481 U.S. at 150. Different jurisdictions have different statutes regarding felony murder. According to the Death Penalty Information Center, twenty-four states and the U.S. government permit a defendant to be sentenced to death for a felony in which he or she did not commit a murder. Fourteen states and the U.S. military do not. Death Penalty Information Center, “State by State Information,” February 11, 2007 8. According to legal anthropologist Lawrence Rosen, to appreciate a concept of the will, persons have to be conceived as having an inner life and a private experience that is not visible or revealed to the external world. Rosen argues that such a conception of the self began emerging in Europe only in the middle of the eleventh century. Consequently, the distinction between the physical and the mental aspect of a crime has not always been meaningful, let alone relevant, in matters of determining criminal responsibility. See Lawrence Rosen, “Intentionality and the Concept of the Person,” Criminal Justice: Nomos 27, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1985) 52–77. 9. Sir William Blackstone, Commentaries on the Laws of England, vol. 2, ed. William Carey Jones (Baton Rouge, LA: Claitor’s Publishing, 1976). 10. Blackstone 2175. 11. Blackstone 2176. 12. The most familiar example of a legal excuse is insanity. Insanity at law is still determined along the lines set down in Regina v. M’Naghten, 10 Clark and F. 200, 8 Eng. Rep. 718 (1843), which is often referred to as the “right-and-wrong test” because it predicates responsibility at law on knowledge of the wrongfulness of the act in question. Insofar as M’Naghten is still with us, we continue to assume that a capacity of the mind to distinguish between right and wrong is a significant element in the makeup of a normal person. The fact that the right-and-wrong test has shifted from a moral register to a legal one does not undermine the point; as court cases and critics contest the nature of a moral distinction between right and wrong and challenge its presumed universality, what we may still assert to be true of all normal persons is the capacity to appreciate and act upon what is right and wrong at law.

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Other conditions recognized at law as excuses are duress, intoxication, and addiction. 13. Some mitigating circumstances recognized at law are provocation, mental capacity, and age. 14. In his dissent, Brennan argues that the Court’s quandary arises as a result of the fact that the majority improperly insists on treating the choice to act recklessly as equivalent to the choice to kill. According to Brennan: The importance of distinguishing between these different choices is rooted in our belief in the “freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” To be faithful to this belief, which is “universal and persistent in mature systems of law,” the criminal law must ensure that the punishment an individual receives conforms to the choices that individual has made. Differential punishment of reckless and intentional actions is therefore essential if we are to retain “the relation between criminal liability and moral culpability” on which criminal justice depends. (171) [Citations omitted] 15. 481 U.S. at 156. 16. 481 U.S. at 158. 17. 481 U.S. at 157–158. 18. 481 U.S. at 158. 19. David McCord, “State Death Sentencing for Felony Murder Accomplices Under the Enmund and Tison Standards,” 32 Arizona State Law Journal 843 (2000) 880. McCord also points out that the kind of recklessness the Court indicates in Tison as being more serious than any other kind of recklessness is not clearly distinguished from other kinds of recklessness. 20. McCord 881. 21. 481 U.S. at 184. 22. 481 U.S. at 157. 23. Michel Foucault, “About the Concept of the ‘Dangerous Individual’ in Nineteenth-Century Legal Psychiatry,” trans. Alain Baudot and Jane Couchman, International Journal of Law and Psychiatry 18 (1978). In this account, Foucault argues that psychiatry was able to make inroads into law by identifying the presence of an intrinsically dangerous element in the social body, the individual who, “by his very existence . . . is a creator of risk, even if he is not at fault, since he has not of his own free will chosen evil rather than good” (16). 24. See Spring Co. v. Edgar, 99 U.S. 645 (1878). 25. According to Foucault, in the nineteenth century the presence of “dangerous individuals” in the social body created an opportunity for psychiatrists to offer explanations of otherwise inexplicable behavior. By providing a motive or an intelligible link between an act and an actor, doctors were able to make sense of a

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particular crime. What is more, only doctors could ensure that the most effective punishment was imposed. See Foucault, “About the Concept of the ‘Dangerous Individual’ in Nineteenth-Century Legal Psychiatry.” 26. See George E. Dix, “Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations,” 19 American Criminal Law Review 16 (1981). Despite ongoing debate about the legitimacy of psychiatric “science,” psychiatrists make compelling claims not only about a defendant’s past and present mental condition but also about his or her future state of mind. For a closer look at the role mental health professionals can play in capital trials see Ron Rosenbaum, “Travels with Dr. Death,” Vanity Fair (May 1990) 140–174. Indeed, the American Psychiatric Association (APA) itself has come out against the practice of psychiatrists testifying to an individual’s future dangerousness because it is concerned not only that psychiatrists are not qualified to interpret the data from which such determinations are derived but also that juries are unlikely to put psychiatrists’ testimony about future dangerousness in proper perspective. Ironically, the Supreme Court appears unconcerned about the influence of expert opinion on juries. In Barefoot v. Estelle, 463 U.S. 880 (1983), the Court argues that the adversary process can be trusted to sort out reliable from unreliable evidence. To which the Court adds, “Neither petitioner nor the [American Psychiatric Association] suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time” (901). 27. Pamela Hediger, “Mens Rea: The Impasse of Law and Psychiatry,” 26 Gonzaga Law Review 613 (1990–91) 614. 28. Karl Menninger, The Crime of Punishment (New York: Viking Press, 1968); Bernard Diamond, “From M’Naghten to Currens, and Beyond (1962),” The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Diamond, M.D., ed. Jacques M. Quen (Hillsdale, NJ: Analytic Press, 1994) 249–263. 29. Diamond 263. 30. Deborah W. Denno, “Criminal Law in a Post-Freudian World,” University of Illinois Law Review 601 (2005) 696. 31. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 50. 32. Nietzsche, Twilight of the Idols/The Anti-Christ 50. 33. Friedrich Nietzsche, The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1974) § 347. 34. Nietzsche, The Gay Science § 373. 35. Georges Canguilhem, The Normal and the Pathological, trans. Carolyn R. Fawcett and Robert S. Cohen (New York: Zone, 1989) 125. 36. Canguilhem 125. 37. Linda Ross Meyer, letter to the author, November 14, 2006. 38. McCleskey v. Kemp, 481 U.S. 279 (1987).

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39. H. L. A. Hart, “Legal Responsibility and Excuses,” Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, U.K.: Clarendon Press, 1968) 28–53. 40. Hart, “Legal Responsibility and Excuses,” 29. 41. Hart, “Legal Responsibility and Excuses,” 34. 42. Hart, “Legal Responsibility and Excuses,” 34. 43. Hart, “Legal Responsibility and Excuses,” 49. 44. This is not to say that the act does not have other significant institutional effects. 45. J. L. Austin, How to Do Things with Words, ed. J. O. Urmson and Marina Sbisa (Cambridge, MA: Harvard University Press, 1975). 46. For an elaboration and critique of Austin’s work on performative utterances see Jacques Derrida, “Signature Event Context,” trans. Alan Bass, Limited Inc., ed. Gerald Graff (Evanston, IL: Northwestern University Press, 1988) 1–23. 47. Austin 3. 48. Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (New York: MacMillan Publishing, Co., 1958) § 92. 49. Wittgenstein § 116. 50. Thus, Hart assumes that the legally binding arrangements that normal persons seek to make in their lives correspond to the arrangements that existing or potential legal institutions make possible. The controversy surrounding the topic of gay marriage suggests that this assumption is not warranted. However, it may attest to the strength of these conventions insofar as the controversy demonstrates how strongly persons want their desires to be legally recognized as conventional ones. What is more, as the content of our laws, according to Hart, reflects what is “believed to be necessary to the maintenance of social life or some highly prized feature of it,” this controversy may indicate that these beliefs are in flux. H. L. A. Hart, The Concept of Law (Oxford, U.K.: Oxford University Press, 1961) 85. 51. Hart, “Legal Responsibility and Excuses” 34. 52. Hart, “Legal Responsibility and Excuses” 35. chapter 5 1. Tison v. Arizona, 481 U.S. 137 (1987). 2. Payne v. Tennessee, 501 U.S. 808 (1990) at 827. 3. Philip Talbert identifies four basic types of victim impact evidence: (1) the victim’s statements about the crime, including descriptions of the physical harm he or she suffered and the lasting effects of the crime; (2) statements made by relatives or close friends about the victim’s personality, relationships with others, and general contributions to the community; (3) statements made by members of the family regarding the emotional impact of the crime on themselves; and (4) statements made by relatives and close friends about their opinions of the crime, the

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defendant, and what the defendant deserves as punishment for having committed such a crime. Philip Talbert, “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision,” 36 U.C.L.A. Law Review 199 (1988). 4. Booth v. Maryland, 482 U.S. 496 (1986); South Carolina v. Gathers, 490 U.S. 805 (1988). In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court says that any factor that renders “arbitrary” the decision to sentence a criminal to death makes capital punishment cruel and unusual and hence unconstitutional. In Booth, and again in Gathers, the Court finds that victim impact evidence primarily appeals to the emotions of the sentencing authority, thereby making it difficult for the sentencing authority to make a rational or “nonarbitrary” sentencing decision. Consequently, the Court finds that the admission of victim impact evidence violates the Eighth Amendment. For the details of Booth v. Maryland and South Carolina v. Gathers see below. 5. This particular formulation of the problem of judgment is drawn from Philippe Lacoue-Labarthe, Heidegger, Art and Politics: The Fiction of the Political, trans. Chris Turner (Oxford, U.K.: Basil Blackwell, 1990) 31. 6. 501 U.S. at 832. 7. 482 U.S. at 516. 8. 490 U.S. at 816–817. 9. 501 U.S. at 844. In 1988, Justice Anthony Kennedy replaced Justice Lewis Powell, and in 1990, Justice David Souter replaced Justice William Brennan. 10. 501 U.S. at 851. 11. 501 U.S. at 849. Marshall recognizes three “special justifications” for overruling a precedent: (1) the advent of “subsequent changes or developments in the law” that undermine a decision’s rationale; (2) the need “to bring [a decision] into agreement with experience and with facts newly ascertained”; and (3) a showing that a particular precedent has become a “detriment to coherence and consistency in the law” (849). The majority claims that Booth and Gathers “have defied consistent application by the lower courts,” but Marshall finds the evidence it offers in support of this claim to be so feeble as to be ridiculous (850). 12. Since 1789, 110 persons have taken the oath of office as justices of the U.S. Supreme Court, and the Senate has rejected only twelve nominees. 13. The appropriateness of justices reaching “creative” decisions is highly contested. Those who subscribe to the constitutional theory of “originalism,” for example, argue that the meaning of the Constitution does not change, so that what it meant when it was originally written is what it means now. To discern this meaning, justices seek to identify and enforce the principles that an appropriately informed interpreter would conclude the founders meant to establish. Nevertheless, as critics point out, this effort does not preclude originalist justices, such as Justices Antonin Scalia and Clarence Thomas, from framing these principles more or less generally as they see fit. See Laurence H. Tribe and Michael C. Dorf,

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“Levels of Generality in the Definition of Rights,” 57 University of Chicago Law Review 1057 (1990). For a sympathetic critique of Tribe and Dorf, see L. Benjamin Young, “Justice Scalia’s History and Tradition: The Chief Nightmare in Professor Tribe’s Anxiety Closet,” 78 Virginia Law Review 581 (1992). For a provocative critique of originalism that may also be extended to Tribe and Dorf ’s attack on Scalia’s methodology, see Harold J. Spaeth, Supreme Court Policy Making: Explanation and Prediction (San Francisco: W. H. Freeman, 1979). 14. James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court (New York: Simon & Schuster, 1995). 15. Payne v. Tennessee provides a good example of Rehnquist’s judicial activism. Writing for the majority in Payne, Rehnquist observes: “Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved[;] the opposite is true in cases such as the present one involving procedural and evidentiary rules” (828; citations omitted). While the question before the Court concerns victim impact evidence, Rehnquist takes this opportunity to state that the doctrine of stare decisis applies primarily to the conditions that make commercial activity possible: property and contract rights. With this statement, Rehnquist invites lower courts to challenge any of the Supreme Court’s existing civil rights decisions and implies that in the future the Court will not necessarily employ the same principles it used in the past in deciding cases concerning procedural and evidentiary rules. 16. 501 U.S. at 827. 17. Cited 501 U.S. at 849. 18. In an article about the implications of the Court’s ruling in Teague v. Lane, 489 U. S. 288 (1989), Linda Meyer persuasively argues that the Supreme Court has gradually undermined the power of precedent and put judges in the position of deciding cases by fiat. Meyer’s argument explains why the Court would not feel significantly constrained by precedent in 1990 when it decided Payne v. Tennessee if it had a reason or desire to act. See Linda Meyer, “ ‘Nothing We Say Matters’: Teague and New Rules,” 61 University of Chicago Law Review 423 (1994). 19. Ford v. Wainwright, 477 U.S. 399 (1986) (holding that the Eighth Amendment prohibits a state from carrying out the death sentence on a prisoner who is insane). 20. I am grateful to an anonymous reader for reminding me that, in The Queen of America Goes to Washington City, Lauren Berlant argues that during the 1980s “something strange happened to citizenship” (1). Observing a proliferation of narratives of traumatized identity, she attributes the coupling of suffering and citizenship to a fear of “being saturated and scarred by the complexities of the present and thereby barred from living the ‘[American Dream]’ ” (4). According to Berlant, a complicated set of anxieties and desires leads the American public to identify with figures of vulnerability—in particular, children and fetuses (6). Berlant’s inquiry into the rise of an “intimate public sphere” and a “nationalist pol-

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itics of intimacy” suggests why the victims’ rights movement might be able to exert such pressure on the Court: a crisis of national confidence in the economic, political, and social future of the country. See Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham, NC: Duke University Press, 1997). 21. 408 U.S. at 360. 22. The victims’ rights movement is also gaining strength around the world. For an overview see Raquel Aldana-Pindell, “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for StateSponsored Crimes,” 26:3 Human Rights Quarterly 605 (August 2004) (examining the tension between the development of international victim norms and offers of impunity for state-sponsored crimes). 23. Marlene A. Young, “Emerging Issues in Victim Assistance,” 17 Pepperdine Law Review 129 (1989). 24. Over the last thirty years or so, every state has passed laws concerning crime victims’ rights, and thirty-two states have amended their constitutions to ensure victims’ rights. 25. GovTrack.us. H.R. 5107—108th Congress (2004): Justice for All Act of 2004, GovTrack.us (database of federal legislation), July 1, 2007 26. See Bruce Shapiro, “Victims and Vengeance: Why the Victims’ Rights Amendment Is a Bad Idea,” The Nation, February 10, 1997: 11–19. 27. See Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (New York: New York University Press, 2002). 28. That is to say, at this historical moment “law” is understood as commandment. See Hannah Arendt, On Revolution (London: Viking Press, 1963) 189. Also see Philippe Nonet, “What Is Positive Law?” 100 Yale Law Journal 667 (December 1990) 668. 29. Arendt, On Revolution 189. 30. Jacques Derrida, “Declarations of Independence,” trans. Tom Keenan and Tom Pepper, 15 New Political Science 13 (Summer 1986) 8. 31. Arendt remarks: “America was spared the cheapest and the most dangerous disguise the absolute ever assumed in the political realm, the disguise of the nation.” Nevertheless, she claims, there was no avoiding the problem of the absolute because it is inherent in the traditional concept of law. Arendt, On Revolution 195. 32. Derrida 11. It is paradoxical that the American revolutionaries call on God to sanction their enterprise “at the very moment when they were about to emancipate the secular realm fully from the influences of the churches and to separate politics and religion once and for all.” Arendt, On Revolution 185–186. 33. While Arendt observes that the Constitution is “silent on the question of ultimate authority,” she claims that it derives its legitimate authority as the law of

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the land from the preamble to the Declaration of Independence. Arendt, On Revolution 193–194. 34. Arendt, On Revolution 192. 35. For a discussion of the construction of pain and how it is rendered meaningful in relation to the defendant who has been sentenced to death, see Timothy V. Kaufman-Osborn, From Noose to Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan, 2002), especially Chapter 5, “Silencing the Voice of Pain.” 36. See Angela P. Harris, “The Jurisprudence of Victimhood,” 3 The Supreme Court Review 77 (1991) (arguing that the problem with Payne is that widely shared social constructions of what it means to be a victim will enter into the jury’s decisionmaking process at the stage of forming an intuitive judgment and may never reach the point of conscious scrutiny). 37. See Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (New York: St. Martin’s Press, 1997) 83. 38. Sociology professor Joel Best makes a similar argument when he talks about how an ideology of victimization helps answer fundamental questions about justice and evil in society. Best argues that this ideology is formed by the combination of seven propositions that underpin most contemporary claims about victims: (1) Victimization is widespread; (2) Victimization is consequential; (3) Relationships between victims and their victimizers are relatively straightforward and unambiguous; (4) Victimization often goes unrecognized; (5) Individuals must be taught to recognize others’ and their own victimization; (6) Claims of victimization must be respected; (7) The term victim has undesirable connotations. Joel Best, “Victimization and the Victim Industry,” Society, May/June 1997: 9–16. 39. Paul G. Cassell, “Barbarians at the Gates? A Reply to the Critics of the Victims’ Rights Amendment,” Utah Law Review 479 (1999). 40. Cassell 535. 41. Tellingly, Cassell attributes Stevens’s negative attitude to an unsympathetic, even hostile, “legal culture” (535). By blaming a (legal) culture rather than a (legal) education for Stevens’s failure to recognize the Law, Cassell indicates that the kind of knowledge at issue here is not found in books but in life. The anti-intellectualism expressed by victims’ rights advocates resembles that of Jean-Jacques Rousseau. In A Discourse on Inequality, Rousseau famously argues that human beings naturally feel compassion for people who are in pain and are instinctively repelled by whatever causes this pain. Consequently, when a man sees another man in agony, he will rush without reflection to the afflicted man’s aid. The first man does not think about what he is doing and does not have to be trained or otherwise educated to act. On the contrary, reason turns man inward into himself and separates him from everything that naturally troubles him or affects him. According to Rousseau:

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A fellow-man may with impunity be murdered under [a philosopher’s] window, for the philosopher has only to put his hands over his ears and argue a little with himself to prevent nature which rebels inside him from making him identify himself with the victim of the murder. The savage man entirely lacks this admirable talent, and for want of wisdom and reason he always responds recklessly to the first promptings of human feeling. (101) Apparently, becoming a lawyer does for Justice Stevens what becoming a philosopher does for the philosopher in Rousseau’s anecdote. See Jean-Jacques Rousseau, A Discourse on Inequality, trans. Maurice Cranston (London: Penguin, 1984). 42. Catherine Bendor, “Defendants’ Wrongs and Victims’ Rights: Payne v. Tennessee, 111 S.Ct. 2597 (1991),” Harvard Civil Rights-Civil Liberties Law Review 27 (1992). The view expressed in this particular article is typical of many law review pieces published in the wake of the Court’s decision in Payne. See, for example, Aida M. Alaka, “Victim Impact Evidence, Arbitrariness, and the Death Penalty: The Supreme Court Flipflops (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991),” 23 Loyola University of Chicago Law Journal 581 (1992); Michael Q. Berkeley, “What You Don’t Know Can Kill You: The Rehnquist Court’s Allowance of Unforeseeable Victim Impact Evidence in the Era of Disposable Precedent (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991),” 27 Wake Forest Law Review 741 (1992); K. Elizabeth Whitehead, “Mourning Becomes Electric: Payne v. Tennessee’s Allowance of Victim Impact Statements During Capital Sentencing Proceedings (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991),” 45 Arkansas Law Review 531 (1992). 43. Bendor 236. 44. 501 U.S. at 858. Of course, the distinction between “reason” and “emotion” is already a controversial one. As Harris reminds us, the distinction is not always clear. What is more, it is not necessarily desirable to keep it clear as “emotions, being partly cognitive, are partly intellectual and can serve as guides to reasoned decision making.” See Harris, “The Jurisprudence of Victimhood” 92. See also Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge, U.K.: Cambridge University Press, 2001). 45. See Edna Erez, “Victim Participation in Sentencing: And the Debate Goes on . . . ,” 3 International Review of Victimology 17 (1994) (arguing that the impact of victims’ input on sentencing outcomes is inconclusive). Taking a contrary view, see Olga Tsoudis and Lynn Smith-Lovin, “How Bad Was It? The Effects of Victim and Perpetrator Emotion on Response to Criminal Court Vignettes,” 77:2 Social Forces (December 1998): 695–722 (arguing that emotions displayed by a perpetrator and a victim during their criminal trial statements will influence a juror’s judgments about their identities and, ultimately, will influence the sentence recommended for the perpetrator).

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46. See the discussion of the Tisons’ case in Chapter 4, “The Cockcrow of Positivism: ‘Normal’ Culpability in Capital Punishment Jurisprudence.” 47. Indeed, even if the pain is identified by experts as psychosomatic, its presence still requires an explanation and, specifically, a causal explanation. Thus, doctors may give up seeking a physiological source of the pain and seek a psychological one instead. 48. In the context of an argument about identity politics in modern liberal society, Wendy Brown makes a similar point. See Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995) 67–68. For a discussion of the generalized incitement to ressentiment contained in liberal philosophy, see William Connolly, Identity/Difference: Democratic Negotiations of Political Paradox (Ithaca, NY: Cornell University Press, 1991). 49. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (Oxford, U.K.: Oxford University Press, 1985). 50. Scarry 52. 51. Scarry 52. 52. According to Scarry, this “something” or “someone” may be conceived in the victim’s mind as the victim himself. For alternative analyses of the structure of this construction of agency and its turn against the self, see Friedrich Nietzsche, On the Genealogy of Morality, trans. Carol Diethe, ed. Keith Ansell-Pearson (Cambridge, U.K.: Cambridge University Press, 1994), and Sigmund Freud, “Mourning and Melancholia (1917),” General Psychological Theory: Papers on Metapsychology, trans. Joan Riviere, ed. Philip Rieff (New York: Collier Books, 1963). 53. Stephen L. Carter, “When Victims Happen to Be Black,” 97 Yale Law Review 420 (1988) 439. 54. Carter argues that society does not recognize blacks as victims. Therefore, criminal acts committed against blacks are not treated as crimes. This argument is supported by the Baldus study, which reported that, in capital trials in Georgia, defendants who were found guilty of killing black people were less likely to be punished for their crime with death than were defendants who had been found guilty of killing white people. Since this study was presented to the Supreme Court in McCleskey v. Kemp (1987) in support of the petitioner’s claim that the death penalty violated the Eighth Amendment because death was imposed with a discriminatory effect, jurisdictions throughout the United States have undertaken similar studies that generally show racial bias in sentencing outcomes. See John Blume, Theodore Eisenberg, and Martin T. Wells, “Explaining Death Row’s Population and Racial Composition,” 1 Journal of Empirical Legal Studies 165 (March 2004) (arguing that black representation on death row is lower than black representation in the population of murder offenders because of a reluctance to seek or

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impose death in black defendant–black victim cases). For the report of the original Baldus study see McCleskey v. Kemp, 481 U.S. 279 (1987). 55. 501 U.S. at 825. 56. 482 U.S. at 520. 57. 501 U.S. at 827. Cited from Snyder v. Massachusetts, 291 U.S. 97 (1934) at 122. 58. Vivian Berger, “Payne and Suffering—A Personal Reflection and a VictimCentered Critique,” 20 Florida State University Law Review 21 (1992) 40. 59. Berger 48. 60. Dr. Dorothy Otnow Lewis, a professor of psychiatry at New York University, argues that almost all murderers are damaged people. After evaluating dozens of death-row inmates and hundreds of other violent criminals, she claims that most murderers have been the victims of repeated, violent, and often sexual child abuse. In addition, they suffer from serious brain damage, particularly damage to the frontal lobes, which control aggression and impulsiveness. Lewis’s findings are contested by Dr. Barbara R. Kirwin, a forensic psychologist, who claims that the incidence of child abuse among homicide defendants is no greater than what is found in the general population. See Laura Mansnerus, “Damaged Brains and the Death Penalty,” New York Times, July 21, 2001, B9. 61. 501 U.S. at 838. 62. Nietzsche claims that the will to truth so ruthlessly insists on the Truth, not because, as one might expect, it is dangerous or harmful to be deceived, but because we do not wish to be the agents of deception. This wish is perplexing to Nietzsche because, he says, human survival has historically depended on deception. Nietzsche concludes, then, that the will to truth expresses nothing but hostility to life. Friedrich Nietzsche, The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1974) § 344. 63. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 50–51. 64. Martin Heidegger, Nietzsche: Volume I: The Will to Power as Art, trans. David Farrell Krell (San Francisco: HarperCollins, 1991) 207. 65. In The Gay Science, Nietzsche observes: “It is still a metaphysical faith upon which our faith in science rests—that even we seekers after knowledge today, we godless anti-metaphysicians still take our fire, too, from the flame lit by a faith that is thousands of years old, that Christian faith which was also the faith of Plato, that god is the truth, that truth is divine” §344. 66. One might argue that this is what legal realism and critical legal studies are about. However, to the extent that these philosophies of law still more or less implicitly subscribe to the view of law as a commandment, they do not overcome positive law. 67. Theodor Adorno, Negative Dialectics, trans. E. B. Ashton (New York: Continuum International Publishing Company, 1973).

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68. Adorno 203. 69. Adorno 202. 70. Adorno 202. 71. Adorno 203. 72. Adorno 365. 73. In The Body in Pain, Scarry argues that an essential attribute of pain is its resistance to language. As a result, “hearing about pain” may exist as the primary model of what it is “to have doubt.” At the same time, however, for the person in pain, “so incontestably and unnegotiably present is it that ‘having pain’ may come to be thought of as the most vibrant example of what it is to ‘have certainty’” (4). Lest this dilemma suggest there is no answer to a question about the reality of another’s pain and suffering, note that Scarry’s whole analysis of pain is motivated by the observation that a person in the presence of another in pain may not realize the other is suffering (even when they are the cause of that suffering) but should know it. 74. The simultaneous intensity and ineffability of pain and suffering is often observed. In The Human Condition, for example, Arendt claims that pain is one of the most intense feelings humans ever know but, at the same time, one of the most private and least communicable. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958) 50–51. In The Body in Pain, Scarry remarks that to the individual who suffers, pain is “overwhelmingly present, more emphatically real than any other human experience, and yet is almost invisible to anyone else, unfelt, and unknown” (51). 75. This danger is noted often in arguments against the admissibility of victim impact evidence. See also Booth v. Maryland, 482 U.S. 496 (1986) at 507. Simultaneously, the victim rights’ movement is working to make it illegal to cross-examine such witnesses. According to the National Victim Center (now the National Center for Victims of Crime), victims need to be protected from “harassment.” Thus, states like New York require that the defendant present written questions to the court, which the court may, if it chooses, put to the victim. See National Center for Victims of Crime, 1996 Victims’ Rights Sourcebook: A Compilation and Comparison of Victims’ Rights Laws. July 1, 2007 . 76. In fact, Berger worries that by allowing the sentencing authority to focus its attention on the victim, the Supreme Court paves the way for “mini-trials” on the victim’s character, inviting the insult of the “decimation of the victim’s memory” to be added to the “ultimate injury” of death. Indeed, she fears that defense attorneys will be obliged to besmirch the deceased’s memory whenever feasible or risk being held ineffective on appeal (50–51). 77. 482 U.S. at 506.

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78. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart (London: Athlone Press, 1970) 11. 79. Bentham 11. The other sovereign master is pleasure; and, strictly speaking, it governs men in the same manner that pain does. I say “strictly speaking” because, as Arendt points out in The Human Condition, “he who wants to make pleasure the ultimate end of all human action is driven to admit that not pleasure but pain, not desire but fear, are his true guides” (309). Bentham admits something of the sort himself when he says that diminishing the sum total of a person’s pains amounts to the same thing as adding to the sum total of his pleasures (12). 80. Indeed, this is why victims have sought the right to testify during the sentencing phase of capital trials. Victims’ rights advocates argue that the prosecution in a criminal trial does not represent the individual but the state. Consequently, the prosecution is not conducted in such a way as to best serve the memory or the interests of the unique individuals involved. In the courtroom and particularly in their testimony, victims’ rights advocates argue, victims call attention to the interests of the unique individuals involved and demand respect for the particularity of the experience of physical and emotional suffering to which they testify. See David L. Roland, “Progress in the Victim Reform Movement: No Longer the ‘Forgotten Victim,’ ” 17 Pepperdine Law Review 35 (1989); George Nicholson, “Victims’ Rights, Remedies, and Resources: A Maturing Presence in American Jurisprudence,” 23 Pacific Law Journal 833 (1992) Footnote 60. 81. According to Austin Sarat, prosecutors operate so as to intensify this identification by making the defendant out to be a monster. See Austin Sarat, “Speaking of Death: Narratives of Violence in Capital Trials,” 27 Law and Society Review 19 (1993). 82. Most of these arguments object to victim impact evidence on the grounds that the defendant will be encouraged to produce this same kind of evidence and use it to excuse or mitigate his crime. However, since Lockett v. Ohio (1978), the defendant has effectively been permitted to explain to the court how he suffered during his life in hopes of persuading the judge and jury to be lenient in its sentencing decision. 83. Martha Minow, “Surviving Victim Talk,” 40 U.C.L.A. Law Review 1415 (1993). 84. Minow 1438. It is difficult to respond to this call for normative standards because victims testify to their feelings. However, keeping this fact foremost in mind, it is easy to understand why the Court might welcome this testimony: the victims’ feelings provide a truth from which normative standards may be derived. Normative standards derived from these feelings do not have to reflect statistical norms, however. That is to say, they need not be based on what is met with in the majority of cases of a determined kind. Rather, they may be based on what is universally experienced and not contested.

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85. Scarry 31. 86. Arendt, The Human Condition 51. 87. In so saying, I do not mean to suggest that death means the same thing to everyone. On the contrary, the significance (or insignificance) of death is highly contested. The fact of death is not, however. 88. In this respect, victims in capital cases speak like ancient philosophers. In the “Phaedo,” Socrates argues that knowledge of the Truth is attainable only after death. While alive, then, those who love the truth must keep as close as possible to knowledge by living in a state as close as possible to death. To do this, they must renounce the body and those things associated with corporeal passions and pleasures (81b, 140). In this purified state, Socrates claims, philosophers may glimpse the truth and better understand what they perceive. Socrates can plausibly make such an assertion because he himself is so close to death. The “Phaedo” recounts the last day of Socrates’ life. Plato, “Phaedo,” The Last Days of Socrates, trans. Hugh Tredennick and Harold Tarrant (London: Penguin, 1993) 109–185. 89. Adorno 203. 90. Nietzsche, On the Genealogy of Morality 111. 91. Nietzsche, On the Genealogy of Morality 91. 92. Nietzsche, On the Genealogy of Morality 128. chapter 6 1. Payne v. Tennessee, 501 U.S. 808 (1990). 2. These organic bases are adenine, cytosine, guanine, and thymine. Adenine will pair only with thymine, and cytosine will pair only with guanine. This means that the order of the bases on one side of a DNA ladder will determine the order on the other side. For a more complete description of DNA and DNA profiling evidence, see George Bundy Smith and Janet A. Gordon, “The Admission of DNA Evidence in State and Federal Courts,” 65 Fordham Law Review 2465 (1997). 3. When a sample of cells is taken from a shaft of hair or dried bones or teeth, for example, the sample will contain very little or highly degraded nuclear DNA. When this is the case, another polymerase chain reaction test is used to isolate and analyze mitochondrial DNA. The mitochondria of DNA are specialized cellular parts analogous to organs (called organelles) involved in producing energy. For the sake of simplicity, I confine my discussion to tests of nuclear DNA. For an examination of the different characteristics of nuclear and mitochondrial DNA and their unique advantages, disadvantages, and probative values in court, see Julian Adams, “Nuclear and Mitochondrial DNA in the Courtroom,” 13 Journal of Law and Policy 69 (2005). 4. For a complete description of these procedures, see National Research Council, The Evaluation of Forensic DNA Evidence (Washington, DC: National Academy Press, 1996). Of course, (bio)technical advances continue to transform

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the work that is done and how it is performed. For instance, RFLP and earlier PCR-based tests are being replaced with new PCR tests that use STR or Short Tandem Repeat regions of the DNA rather than Variable Number Tandem Repeat or VNTR regions to produce DNA evidence that may be presented in court. Hypervariable regions of nuclear DNA contain segments from two to thirty-five bases long repeated several times side-by-side. The sequence is called a “motif.” The pattern of variation is defined by the length of the motif. The first regions of DNA to be identified in the 1980s had motifs ranging in length from fifteen to thirty-five bases. These regions were known as the Variable Number Tandem Repeats or VNTR loci. However, when PCR was applied in DNA forensic analysis in the 1990s, Short Tandem Repeats with motifs of two, three, four, or five bases were favored for analysis because PCR can amplify fragments only up to a certain size. See Adams 4. 5. Christopher Asplen, et al., “Postconviction DNA Testing: Recommendations for Handling Requests” (National Commission on the Future of DNA Evidence Research Report, 1999) 27. 6. Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen, “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial” (NIJ Research Report, 1996) 6. 7. State v. Woodall, 385 S.E. 2d 253 (W. Va. 1989). 8. People v. Castro, 545 N.Y.S. 2d 985 (Sup. Ct. 1989). 9. The case was never tried because late in 1989 Joseph Castro pleaded guilty to murdering Vilma Ponce and her two-year-old daughter. 10. The first two prongs of the analysis are: (1) Is there a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results?; and (2) Do techniques or experiments currently exist that are capable of producing reliable results in DNA identification and that are generally accepted in the scientific community? (545 N.Y.S. 2d at 987). 11. Frye v. United States, 293 F. 1013 (1923) at 1014. 12. James P. Flannery, Kara Howe, and Blanca Dominguez, “Frye, Daubert, Donaldson, and Junk Science: The Admissibility of Novel Scientific Evidence in Illinois,” 18 CBA Record 30 (2004) 31. 13. According to Smith and Gordon, the major problems affecting the validity and reliability of DNA profiling evidence stem from an inadequate population database, the presence of substructures or subgroups with varying DNA patterns that tend to mate among themselves in the population, and the inadequacy of laboratory standards and techniques. Smith and Gordon 2477–2478. The inadequacy of laboratory standards and techniques has been obvious for some time. Challenges include preserving evidence samples from harm or neglect; preventing contamination of DNA samples before, during, and after testing is completed;

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standardizing testing procedures; and establishing common standards with which to judge the reliability of the interpretation of DNA analysis. See Lee Thaggard, “DNA Fingerprinting: Overview of the Impact of the Genetic Witness on the American System of Criminal Justice,” 61 Mississippi Law Journal 423 (1991) 440–444. 14. Therefore, the quality of the DNA evidence presented to a jury depends not only on a laboratory’s ability to correctly follow reliable technical procedures but also on its ability to do statistical analyses of population genetics. The two-step process by which the statistical significance of a match is determined is described in Smith and Gordon 2473–2477. 15. This error is known as the “Prosecutor’s Fallacy.” See Adams 88–89. 16. Jim Dwyer, Peter Neufeld, and Barry Scheck, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (New York: Random House, 2000). Created by Barry Scheck and Peter Neufeld in 1992, the Innocence Project is a nonprofit legal clinic that handles only cases where postconviction DNA testing of innocence can yield conclusive proof of innocence. For more information on the Innocence Project see . 17. Cited in Dwyer, Neufeld, and Scheck 93. 18. Dwyer, Neufeld, and Scheck 101. 19. Death Penalty Information Center, “Innocence: List of Those Freed from Death Row,” July 1, 2007 . Observing how few of all documented DNA exonerations in the United States involve capital prisoners, law professor James Liebman explains that the typical capital crime in this country is murder in the course of robbery or burglary or for insurance or hire. These offenses are not usually characterized by biological evidence left by the offender. See James S. Liebman, “The New Death Penalty Debate: What’s DNA Got to Do with It?” 33 Columbia Human Rights Law Review 527 (2002) 541–542. 20. Lawrence C. Marshall, “The Innocence Revolution and the Death Penalty,” 1 The Ohio State Journal of Criminal Law 573 (2004) 573–574. 21. Dwyer, Neufeld, and Scheck 121–122. 22. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Commission on the Future of DNA Evidence, “Postconviction DNA Testing: Recommendations for Handling Requests” (Washington, DC: National Institute of Justice, 1999) vi. In 1996, the National Institute of Justice published a research report on the exoneration of twenty-eight prisoners with DNA evidence. In response to that report, Attorney General Janet Reno requested that the institute establish a National Commission on the Future of DNA Evidence to “identify ways to maximize the value of DNA in our criminal justice sys-

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tem.” U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Commission on the Future of DNA Evidence iii. 23. For a complete list of the recommendations made by the commission, see U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Commission on the Future of DNA Evidence 31–65. 24. In a book on the scientific method, Hugh Gauch argues that the value of science is due to four attributes that attend any scientific declaration. These attributes are: rationality (understood as good reasoning), truth (or the correspondence of a statement with the actual state of the world), objectivity (knowledge about an object that is achievable by all humans and immune to worldview differences), and realism (the philosophical theory that human thoughts and independent physical objects exist and that human endowments render the physical world substantially intelligible and reliably known). See Hugh G. Gauch, Jr., Scientific Method in Practice (Cambridge, U.K.: Cambridge University Press, 2003) 27–40. 25. Dwyer, Neufeld, and Scheck 220–221. 26. For the complete list of the legal issues identified by the Commission, see U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Commission on the Future of DNA Evidence 11–19. 27. For an historical argument on this topic, see Michel Foucault, “About the Concept of the ‘Dangerous Individual’ in Nineteenth-Century Legal Psychiatry,” trans. Alain Baudot and Jane Couchman, 1 International Journal of Law and Psychiatry 18 (1978). 28. Jamie Stockwell, “Defense, Prosecution Play to New ‘CSI’ Savvy: Juries Expecting TV-Style Forensics,” July 27, 2005 . 29. Kit R. Roane and Dan Morrison, “The CSI Effect: On TV, It’s All SlamDunk Evidence and Quick Convictions. Now Juries Expect the Same Thing— and That’s a Big Problem,” July 27, 2005 . 30. Hattie Kaufman, “The CSI Effect,” July 27, 2005 . 31. Liebman 543. 32. In 1993, the Supreme Court held in Herrera v. Collins that newly discovered evidence relevant to the guilt of a state prisoner is not grounds for federal habeas corpus relief and that states may legally limit the amount of time a death row inmate has to contest his conviction with evidence of his actual innocence. Herrera v. Collins, 506 U.S. 390 (1993). Consequently, exonerations usually depend on an appellate lawyer finding a reversible, outcome-affecting procedural error in the trial that sent her client to death row. Typically, Liebman argues, such errors include incompetent lawyering (made manifest in the failure to discover evidence of

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innocence or mitigation), prosecutorial suppression of evidence of innocence or mitigation, and judge’s jury instructions to ignore or give short shrift to such evidence when it is introduced. Liebman 544. 33. The arbitrariness of this “break” is reminiscent of Justice Potter Stewart’s famous description in Furman v. Georgia (1972) of the arbitrariness of being convicted of a capital crime and sentenced to death, which he said, was as “wanton” and “freakish” as being struck by lightning. Furman v. Georgia, 408 U.S. 238 (1972) at 309–310. 34. Dorothy Nelkin and M. Susan Lindee, The DNA Mystique: The Gene as a Cultural Icon (New York: W .H. Freeman & Co., 1995) 2. 35. Plato, “Phaedo,” The Trial and Death of Socrates, trans. Hugh Tredennick and Harold Tarrant (London: Penguin, 1993) 109–185, 119. 36. Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995) 7. 37. Dwyer, Neufeld, and Scheck 122. 38. Cited in Connors, Lundregan, Miller, and McEwen 25. 39. Craig M. Cooley, “The Death Penalty in America: Reforming the Forensic Science Community to Avert the Ultimate Injustice,” 15 Stanford Law & Policy Review 381 (2004). 40. Death Penalty Information Center, “In Ryan’s Words: ‘I Must Act,’” October 13, 2003 . 41. Curiously, the governor does not blame us for our mistakes. Instead, he invokes an evil spirit, a “demon of error,” under whose influence we cannot reckon properly or calculate well. Beyond the reach of this pernicious imp, however, that is to say, from a position outside of the capital system, our mistakes are possible to identify as such. 42. In 1989, DNA tests proved that Gary Dotson had not committed the rape for which he had served 10 years in and out of prison and on parole, and his rape conviction was vacated and all charges against him dismissed. See Center on Wrongful Convictions, “The Rape That Wasn’t—The First DNA Exoneration in Illinois,” July 1, 2007 . 43. Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil, “Exonerations in the United States 1989 through 2003,” 95 Journal of Criminal Law and Criminology 523 (Winter 2005) 528. 44. Gross and his colleagues speculate that false convictions are more likely to occur in murder cases, and much more likely in death penalty cases, than in other criminal prosecutions for several reasons. First, politicians and legal officials are under more pressure to secure convictions for heinous crimes. Second, many homicides are particularly difficult to investigate because, by definition, the victims are unavailable to assist the police and prosecutors. Finally, the real killers

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have a strong incentive to frame innocent fall guys when they are facing the possibility of execution. See Gross et al. 532. 45. Austin Sarat, Mercy on Trial: What It Means to Stop an Execution (Princeton, NJ: Princeton University Press, 2005) 118. 46. Sarat 142. 47. Sarat 92. The relevant section of Article II, §2 of the United States Constitution reads: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” 48. Sarat 74. 49. Sarat 71. 50. Death Penalty Information Center, “In Ryan’s Words: ‘I Must Act,’” October 13, 2003 . 51. 506 U.S. at 415. 52. 506 U.S. at 439–440. 53. 506 U.S. at 417. 54. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 51. 55. In their survey of exonerations from 1989 to 2003, Gross and his colleagues find that exonerations for prisoners on death row are more than twenty-five times more frequent than exonerations for other prisoners convicted of murder and more than one hundred times more frequent than for all imprisoned felons. According to Gross et al., this discrepancy means that false convictions are more likely for death sentences than for all murder cases, and much more likely than among felony convictions generally. See Gross et al. 552. 56. Governor Ryan here echoes Justice Harry Blackmun’s famous 1994 dissenting opinion in Callins v. Collins. In this opinion, written on the occasion of a denial of Bruce Callins’s petition to the Supreme Court for a writ of certiorari, Blackman concludes that the death penalty cannot be imposed without violating the Constitution. The opinion is noteworthy because Blackmun had reluctantly but steadfastly defended the constitutionality of capital punishment throughout his career on the Court up to this point. See Callins v. Collins, 510 U.S. 1141 (1994). 57. Friedrich Nietzsche, The Will to Power, trans. Walter Kaufmann and R. J. Hollingdale (New York: Vintage, 1967) §12. 58. According to Austin Sarat, Governor Ryan is a new abolitionist. New abolitionists argue against the practice of capital punishment on the grounds that the death penalty is administered in a manner that is incompatible with America’s

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fundamental commitments to fair and equal treatment. Consequently, the practice of capital punishment inflicts serious injuries on the political and legal institutions of the United States. To prevent these injuries from taking place, the death penalty must be abolished. See Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ: Princeton University Press, 2001) 258–259. 59. Martin Heidegger, “The Question Concerning Technology,” The Question Concerning Technology and Other Essays, trans. William Lovitt (New York: Harper Colophon, 1977) 3–35, 17. 60. Indeed, we may, to some extent, understand ourselves as standing-reserve in so far as within that “inclusive rubric” every other possibility of revealing is driven out. Heidegger claims, “The essence of modern technology starts man upon the way of that revealing through which the real everywhere, more or less distinctly, becomes standing-reserve” (24). 61. Friedrich Nietzsche, Thus Spake Zarathustra, trans. Walter Kaufmann (New York: Penguin, 1974) 200–201. 62. Nietzsche, The Will to Power §608. 63. Friedrich Nietzsche, The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1974) §347. 64. Ronald Tabak, “Finality Without Fairness: Why We Are Moving Towards Moratoria on Executions, and the Potential Abolition of Capital Punishment,” 33 Connecticut Law Review 733 (2001) 762. 65. Tabak 748. Tabak’s argument is noteworthy because he warns against the temptation offered by technology to rely on scientific proof of innocence in advocating a moratorium. Yet he admits that the focus on DNA and accuracy in the guilt or innocence and penalty phases of capital trials has lead the public to engage with the topic of the death penalty in a new way, and in so doing, he puts DNA in the position of a new truth that transforms the legal system by legitimating it on new grounds. 66. John Wefing, “Wishful Thinking by Ronald J. Tabak: Why DNA Evidence Will Not Lead to the Abolition of the Death Penalty,” 33 Connecticut Law Review 861 (2001) 863. 67. Wefing 863. 68. Wefing 894. Wefing cites William J. Bowers, “The Capital Jury Project: Rationale, Design, and Preview of Early Findings,” 70 Indiana Law Journal 1043 (1995) at 1044. 69. Thus, the introduction of DNA evidence in capital trials risks “dehumanizing” not only defendants whose unique circumstances may no longer seem relevant to the question of what they deserve as punishment, but also jurors who resist and repress the pity they (should) feel for their fellow human beings. For the sense

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of “dehumanization” here, see Robert Johnson, Death Work: A Study of the Modern Execution Process (Belmont, CA: Wadsworth Publishing Co., 1998). 70. Wefing 895. Wefing cites Phyllis L. Crocker, “Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases,” 66 Fordham Law Review 21 (1997) 22. 71. Nietzsche, The Will to Power §22. 72. Nietzsche, The Gay Science §347. 73. Nietzsche, The Will to Power §15. 74. R. C. Lewontin, The Doctrine of DNA: Biology as Ideology (London: Penguin, 1991) 57. 75. R. C. Lewontin, The Triple Helix: Gene, Organism, and Environment (Cambridge, MA: Harvard University Press, 2000) 113–114. 76. Nietzsche attributes our difficulty letting go of these concepts to the basic presuppositions of reason. “It is this which sees everywhere deed and doers; this which believes in will as cause in general; this which believes in the ‘ego’, in the ego as being, in the ego as substance, and which projects its belief in the ego-substance on to all things—only thus does it create the concept ‘thing’ . . .” Nietzsche, Twilight of the Idols/The Anti-Christ 48. 77. Nietzsche, The Will to Power §604. 78. Nietzsche, The Will to Power §32. chapter 7 1. Furman v. Georgia, 408 U.S. 238 (1972). Justice William Brennan is the only justice to explicitly reject retribution as a justification for the death penalty in Furman. 408 U.S. at 304–305. Justice Thurgood Marshall also condemns retribution as a justification for punishment, but when he does so he conflates retribution and revenge. 408 U.S. at 343–345. In fact, Marshall admits “it can correctly be said that breaking the law is the sine qua non of punishment, or, in other words, that we only tolerate punishment as it is imposed on one who deviates from the norm established by the criminal law.” 408 U.S. at 342–343. Justice Potter Stewart defends retribution, arguing that “The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.” 408 U.S. at 308. 2. In Herrera v. Collins, 506 U.S. 390 (1993), the Court ruled that a petitioner who challenged the validity of his conviction was not entitled to federal habeas corpus relief as “a claim of ‘actual innocence’ is not itself a constitutional claim” (404). But the Court also said that a wrongfully convicted person could seek executive clemency, describing executive clemency as “the ‘fail safe’ in our criminal justice system” (415). For a discussion of the place of executive clemency in the criminal justice system, see Chapter 6.

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3. Friedrich Nietzsche, Twilight of the Idols/ The Anti-Christ, trans. R. J. Hollingdale (London: Penguin, 1990) 50–51. 4. Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology,” 36 Journal of Legal Education 526 (1986). 5. For reflections on this sort of interval, see Jacques Lacan, “Logical Time and the Assertion of Anticipated Certainty: A New Sophism,” trans. B. Fink and M. Silver, ed. Ellie Ragland-Sullivan Newsletter of the Freudian Field 2 (1988). 6. Sigmund Freud, The Interpretation of Dreams, trans. James Strachey (New York: Avon Books, 1965) 143. 7. Martin J. Leahy, Norman L. Greene, Robert Blecker, Jefferey L. Kirchmeier, William M. Erlbaum, David Von Drehle, and Jeffrey Fagan, “Rethinking the Death Penalty: Can We Define Who Deserves Death?” 24 Pace Law Review 107 (2003). 8. This question is formulated in a peculiar way that suggests the judges, lawyers, and scholars who have been invited to address it are to come up with a definition of who deserves to die, by which it may be possible to identify particular individuals as deserving of death. However, the question is quickly rephrased in terms of discretion and decision. 9. Leahy et al. 123. 10. Published in 2000, the study shows that 68 percent of the convictions in capital cases between 1973 and 1995 were reversed. The study concludes that the death penalty system in the United States is so fraught with error that reliability in sentencing decisions is seriously undermined. James S. Liebman, Jeffrey Fagan, and Valerie West, “A Broken System: Error Rates in Capital Cases 1973–1995,” July 2, 2007 . 11. For instance, the Honorable William Erlbaum, an acting justice of the New York Supreme Court and adjunct professor of law at Brooklyn Law School, replied to Professor Blecker’s argument: “If Blecker’s certainty is evidence, then here is mine: They don’t deserve to die. I know that. I feel certain.” He went on to remark: “The two testimonials nullify one another, leaving the retributionist at square one” (153). The Washington Post journalist and author of Among the Lowest of the Dead: The Culture of Death Row, David Von Drehle took a different tack, claiming that the death penalty system doesn’t identify and kill the “worst of the worst” because the system rests on taste. Fagan’s argument was also criticized. Jeffrey Kirchmeier, a professor of law at the City University of New York, chair of the Capital Punishment Committee of the Association of the Bar of the City of New York, and a former attorney at the Arizona Capital Representation Project, identified several problems with designing a system that would give us a smaller category of condemned and expecting that system to cure all the current problems with the death penalty. Blecker also took issue with the Liebman Report, but on methodological grounds. See Leahy et al.

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12. Leahy et al. 131. 13. In this, Blecker seems to follow Plato’s argument in the “Meno” that virtue cannot be taught but only recollected. See Plato, “Meno,” Plato: The Collected Dialogues, trans. W. K. C. Guthrie, ed. Edith Hamilton and Huntington Cairns (Princeton, NJ: Princeton University Press, 1961) 353–384. 14. Zant v. Stephens, 462 U.S. 862 (1982) at 870–872. 15. Jerome N. Frank, Law and the Modern Mind (New York: Brentano, 1930) 28. 16. Frank mentions in particular Dean Roscoe Pound, Felix Frankfurter, and Thomas Reed Powell. 17. Jerome N. Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, NJ: Princeton University Press, 1950) 179. What is more, according to Frank, these forces influence not only judges’ decisions about law, as Benjamin Cardozo says, but also judges’ findings of fact. 18. For instance, Frank defines law as “actual specific past decisions, and guesses as to actual future decisions.” Frank, Law and the Modern Mind 47. 19. Jacques Derrida, “Force of Law: The Mystical Foundation of Authority,” trans. Mary Quaintance and Gil Anidjar, Acts of Religion, ed. Gil Anidjar (New York: Routledge, 2002) 230–300. 20. Derrida 231. 21. Derrida 232. 22. “If, at least, I want to make myself heard and understood it is necessary that I speak your language; je le dois, I have to do it” (232). For a discussion of the “wrong” to which this necessity may give rise, see Jean-François Lyotard, The Differend: Phrases in Dispute, trans. Georges Van Den Abbeele (Minneapolis: University of Minnesota Press, 1988). 23. A. W. H. Adkins, From the Many to the One: A Study of Personality and Views of Human Nature in the Context of Ancient Greek Society, Values, and Beliefs (Ithaca, NY: Cornell University Press, 1970) 23. 24. Adkins 17. 25. Adkins 26. 26. Adkins 45. 27. Adkins 41. 28. Leahy et al. 130. 29. Paul Ekman, “Dataface: Psychology, Appearance, and Behavior of the Human Face,” July 2, 2007, . 30. For some potential applications of such insights to political life, see Jane Bennett, The Enchantment of Modern Life: Attachments, Crossings, and Ethics (Princeton, NJ: Princeton University Press, 2001). Also, William E. Connolly, Neuropolitics: Thinking, Culture, Speed (Minneapolis: University of Minnesota Press, 2002).

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31. Given my debt to the work of Hannah Arendt, I think I should note immediately that in this description of judgment I depart significantly from her own account of judgment. For example, Arendt describes judgment as a mental activity, but she does not identify judging with acting. According to Arendt, judges are not actors but spectators who create the space in which acts appear. However, she does claim that “this critic and spectator sits in every actor and fabricator; without this critical, judging faculty the doer or maker would be so isolated from the spectator that he would not even be perceived.” Hannah Arendt, Lectures on Kant’s Political Philosophy, ed. Ronald Beiner (Chicago: University of Chicago Press, 1982) 63. 32. Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958). 33. Arendt, The Human Condition 177. 34. See Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New York: Harper & Row, 1964). 35. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990) 143. 36. Bork 148. 37. Bork 149. 38. See Dean Paul Brest’s critique of Bork’s argument. Dean Paul Brest, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” 90 Yale Law Journal 1063 (1981). Bork replies to Brest’s argument at 1091–1092. Bork 148–149. 39. Bork 150. 40. See John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence, ed. H. L. A. Hart (London: Weidenfeld & Nicolson, 1954). 41. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, MA: MIT Press, 1985) 5. 42. Schmitt 6. 43. Schmitt 5. The exception is an exemplary decision in more than one sense, then. First, Schmitt says, “The decision on the exception is a decision in the true sense of the word” (6). In defining the decision on the exception as the real or the true sense of the word “decision,” Schmitt implies that to decide what something is without reference to any standard or norm is “the independent meaning of the decision” (6). In other words, the decision on the exception exemplifies what it means to decide. (Schmitt gives as examples of such decisions a case of extreme peril or a danger to the existence of the state.) The second sense in which the exception is an exemplary decision is the sense in which the decision to decide without referring to any norm or “ordinary legal prescription” is itself exceptional. Only as such can this decision set the standard by which any other instance (im-

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possible by definition) of decision may be recognized as a decision in “the true sense of the word.” 44. This is the sense of the definition that George Schwab emphasizes when he claims that, “[Schmitt’s] sovereign slumbers in normal times but suddenly awakens when a normal situation threatens to become an exception. The core of this authority is its exclusive possession of the right of, or its monopoly of, political decision making.” George Schwab, Introduction, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, MA: MIT Press, 1985) xi–xxvi, xviii. 45. Schmitt 5. 46. Schmitt 33. 47. Schmitt tells us that the sovereign decides on the exception, but he sheds little light on how the sovereign decides. The obscurity of this decision fits with Schmitt’s overall argument that all significant concepts of the modern theory of the state are secularized theological concepts (36). As the omnipotent God became the omnipotent lawgiver, it is not surprising that we do not know how the sovereign judges. The ways of God are mysterious. Schmitt does say that the sovereign is concerned with public order and security. Still, he emphasizes that it is the sovereign’s prerogative to determine not only when order and security are disturbed but also what public order and security are (9). 48. Arendt, The Human Condition 179. 49. Arendt, The Human Condition 179. 50. Arendt, The Human Condition 182. 51. Niccolò Machiavelli, The Prince, trans. Robert M. Adams (New York: W. W. Norton & Co., 1992) 67. 52. Machiavelli 67. 53. Machiavelli 68. 54. Machiavelli 3. 55. Machiavelli 15. 56. Machiavelli 68. 57. Machiavelli 9. 58. Robert Cover, “Violence and the Word,” 95 Yale Law Journal 1601 (1986). 59. Cover 1601. 60. Cover 1601. The act of judgment may also constitute a justification for violence that has already occurred or that is about to occur. 61. Cover 1613. 62. Cover 1613. 63. Cover 1613. 64. Cover says that this resistance may be overcome in a number of ways. One of the most widespread and effective is through institutional roles. Cover 1614–1615.

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65. Cover 1616. 66. Cover 1617. 67. Cover 1627. 68. Cover 1627. 69. Cover 1628. 70. John Tinkler, conversation with the author, March 3, 2007. 71. Arendt, Lectures on Kant’s Political Philosophy 72. 72. Arendt, Lectures on Kant’s Political Philosophy 73. 73. For a similar view, see William E. Connolly, The Ethos of Pluralization (Minneapolis: University of Minnesota Press, 1995). 74. Arendt, The Human Condition 237. 75. Walter Benjamin, “Critique of Violence,” Reflections, trans. Edmund Jephcott, ed. Peter Demetz (New York: Schocken Books, 1986) 277–300. 76. Friedrich Nietzsche, On the Genealogy of Morality, trans. Carol Diethe, ed. Keith Ansell-Pearson (Cambridge, U.K.: Cambridge University Press, 1994) 3. 77. James W. Marquart and Jonathan R. Sorensen, “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders,” 23 Loyola of Los Angeles Law Review 5 (1989). 78. Schmitt 6. 79. 408 U.S. at 286. 80. 408 U.S. at 286–287. 81. 408 U.S. at 289. 82. 408 U.S. at 306. 83. 408 U.S. at 306. 84. 408 U.S. at 400; McGautha v. California, 402 U.S. 183 (1971). 85. On Franklin Zimring and Gordon Hawkins’s account, it was not concern about legal stability but rather about political objectivity that eventually led the Court to overturn Furman. According to Zimring and Hawkins, when the constitutionality of the imposition of the death penalty is raised again as an issue in Gregg v. Georgia (1976), Profitt v. Florida (1976), and Jurek v. Texas (1976), the Court rules in favor of the states and restores the practice of capital punishment because it is worried that, with a series of decisions in other areas, in particular the area of abortion rights, it has come to appear too liberal. Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda (Cambridge, U.K.: Cambridge University Press, 1986). 86. 408 U.S. at 286. 87. Carol S. Steiker, “Capital Punishment and American Exceptionalism,” 81 Oregon Law Review 97 (2002) 97. 88. See H. L. A. Hart, The Concept of Law (Oxford, U.K.: Oxford University Press, 1961).

Notes

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89. Of course, justices rely on their clerks to more or less draft their opinions. On this point, see Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Henry Holt & Co., 2005) 177–179. 90. 408 U.S. at 405–406. 91. 408 U.S. at 408. 92. 408 U.S. at 410. 93. 408 U.S. at 411. 94. Arendt, The Human Condition 237. 95. Trop v. Dulles, 356 U.S. 86 (1958). 96. 408 U.S. at 289–290. 97. 408 U.S. at 290. 98. 408 U.S. at 290. 99. See Albert Camus, “Reflections on the Guillotine,” Resistance, Rebellion, and Death, trans. Justin O’Brien (New York: Alfred A. Knopf, Inc., 1960) 175–234. 100. The promise of justice may, for instance, be understood to be an obligation to get revenge, an obligation taken on by the state in “civilized” society. See René Girard, Violence and the Sacred, trans. Patrick Gregory (Baltimore, MD: Johns Hopkins University Press, 1977). 101. Vasquez v. Harris, 503 U.S. 1000 (1992). 102. 503 U.S. at 1000. For a critique of the Supreme Court’s action in this case, see Evan Caminker and Erwin Chemerinsky, “The Lawless Execution of Robert Alton Harris,” 102 Yale Law Journal 225 (1992). For a defense of the Court’s decision, see Stephen G. Calabresi and Gary Lawson, “Equity and Hierarchy: Reflections on the Harris Execution,” 102 Yale Law Journal 255 (1992). 103. Machiavelli 67. 104. Friedrich Nietzsche, Beyond Good and Evil: Prelude to a Philosophy of the Future, trans. Walter Kaufmann (New York: Vintage, 1966) § 27. 105. Nietzsche, Beyond Good and Evil § 27, footnote 7. 106. Nietzsche, Beyond Good and Evil § 28. 107. Friedrich Nietzsche, Daybreak: Thoughts on the Prejudices of Morality, trans. R. J. Hollingdale (Cambridge, U.K.: Cambridge University Press, 1982). 108. Nietzsche, Daybreak § 552. 109. Nietzsche, Daybreak § 552. 110. Nietzsche, Daybreak § 552. 111. Nietzsche, Twilight of the Idols/The Anti-Christ 31. 112. For examples of arguments made against life without possibility of parole, see Marie Gottschalk, “Dismantling the Carceral State: The Future of Penal Policy Reform,” 84 Texas Law Review 1693 (2006); Elizabeth Cepparuto, “Roper v. Simmons: Unveiling Juvenile Purgatory: Is Life Really Better Than Death?” 16 Temple Political and Civil Rights Law Review 225 (2006). 113. Nietzsche, Beyond Good and Evil § 203.

Bibliography

references Adams, Julian. “Nuclear and Mitochondrial DNA in the Courtroom.” 13 Journal of Law and Policy 69 (2005). Adkins, A. W. H. From the Many to the One: A Study of Personality and Views of Human Nature in the Context of Ancient Greek Society, Values, and Beliefs. Ithaca, NY: Cornell University Press, 1970. Adorno, Theodor. Negative Dialectics. Trans. E. B. Ashton. New York: Continuum International Publishing Company, 1973. Alaka, Aida M. “Victim Impact Evidence, Arbitrariness, and the Death Penalty: The Supreme Court Flipflops (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991).” 23 Loyola University of Chicago Law Journal 581 (1992). Aldana-Pindell, Racquel. “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes.” 26:3 Human Rights Quarterly 605 (August 2004). Arendt, Hannah. The Human Condition. Chicago: University of Chicago Press, 1958. ———. On Revolution. London: Viking Press, 1963. ———. Lectures on Kant’s Political Philosophy. Ed. Ronald Beiner. Chicago: University of Chicago Press, 1982. Aristotle. Politics. Trans. T. A. Sinclair. Rev. Trevor J. Saunders. New York: Penguin, 1981. Asplen, Christopher, et al. “Postconviction DNA Testing: Recommendations for Handling Requests.” National Commission on the Future of DNA Evidence Research Report, 1999. Augustine. Confessions. Trans. R. S. Pine-Coffin. London: Penguin, 1961. Austin, John. The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence. Ed. H. L. A. Hart. London: Weidenfeld & Nicolson, 1954. Austin, J. L. How to Do Things with Words. Ed. J. O. Urmson and Marina Sbisa. Cambridge, MA: Harvard University Press, 1975. Bedau, Hugo Adam. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.

212

Bibliography

Bendor, Catherine. “Defendants’ Wrongs and Victims’ Rights: Payne v. Tennessee, 111 S.Ct. 2597 (1991).” Harvard Civil Rights-Civil Liberties Law Review 27 (1992). Benjamin, Walter. “Critique of Violence.” In Reflections: Essays, Aphorisms, Autobiographical Writings. Trans. Edmund Jephcott. Ed. Peter Demetz. New York: Schocken Books, 1986. 277–300. Bennett, Jane. The Enchantment of Modern Life: Attachments, Crossings, and Ethics. Princeton, NJ: Princeton University Press, 2001. Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. Ed. J. H. Burns and H. L. A. Hart. London: Athlone Press, 1970. Berger, Vivian. “Payne and Suffering—A Personal Reflection and a VictimCentered Critique.” 20 Florida State University Law Review 21 (1992). Berkeley, Michael Q. “What You Don’t Know Can Kill You: The Rehnquist Court’s Allowance of Unforeseeable Victim Impact Evidence in the Era of Disposable Precedent (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991).” 27 Wake Forest Law Review 741 (1992). Berlant, Lauren. The Queen of America Goes to Washington City: Essays on Sex and Citizenship. Durham, NC: Duke University Press, 1997. Best, Joel. “Victimization and the Victim Industry.” Society (May/June 1997): 9–16. Blackstone, Sir William. Commentaries on the Laws of England. Vol. 2. Ed. William Carey Jones. Baton Rouge, LA: Claitor’s Publishing, 1976. Blume, John, Theodore Eisenberg, and Martin T. Wells. “Explaining Death Row’s Population and Racial Composition.” 1 Journal of Empirical Legal Studies 165 (March 2004). Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: The Free Press, 1990. Bowers, William J. “The Capital Jury Project: Rationale, Design, and Preview of Early Findings.” 70 Indiana Law Journal 1043 (1995). Brest, Dean Paul. “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship.” 90 Yale Law Journal 1063 (1981). Brown, Wendy. States of Injury: Power and Freedom in Late Modernity. Princeton, NJ: Princeton University Press, 1995. Calabresi, Stephen G., and Gary Lawson. “Equity and Hierarchy: Reflections on the Harris Execution.” 102 Yale Law Journal 255 (1992). Caminker, Evan, and Erwin Chemerinsky. “The Lawless Execution of Robert Alton Harris.” 102 Yale Law Journal 225 (1992). Camus, Albert. “Reflections on the Guillotine.” In Resistance, Rebellion, and Death. Trans. Justin O’Brien. New York: Alfred A. Knopf, Inc., 1960. 175–234.

Bibliography

213

Canguilhem, Georges. The Normal and the Pathological. Trans. Carolyn R. Fawcett and Robert S. Cohen. New York: Zone, 1989. Carter, Stephen L. “When Victims Happen to Be Black.” 97 Yale Law Review 420 (1988). Cassell, Paul G. “Barbarians at the Gates? A Reply to the Critics of the Victims’ Rights Amendment.” Utah Law Review 479 (1999). Center on Wrongful Convictions, “The Rape That Wasn’t—The First DNA Exoneration in Illinois.” July 1, 2007. Retrieved from Cepparuto, Elizabeth. “Roper v. Simmons: Unveiling Juvenile Purgatory: Is Life Really Better Than Death?” 16 Temple Political and Civil Rights Law Review 225 (2006). Connors, Edward, Thomas Lundregan, Neal Miller, and Tom McEwen. “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.” NIJ Research Report, 1996. Connolly, William. Identity/Difference: Democratic Negotiations of Political Paradox. Ithaca, NY: Cornell University Press, 1991. ———. The Ethos of Pluralization. Minneapolis: University of Minnesota Press, 1995. ———. Neuropolitics: Thinking, Culture, Speed. Minneapolis: University of Minnesota Press, 2002. Constable, Marianne. “Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law.” 19 Law & Social Inquiry 551 (1994). ———. The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge. Chicago: University of Chicago Press, 1994. Cooley, Craig M. “The Death Penalty in America: Reforming the Forensic Science Community to Avert the Ultimate Injustice.” 15 Stanford Law & Policy Review 381 (2004). Costanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin’s Press, 1997. Cover, Robert. “Violence and the Word.” 95 Yale Law Journal 1601 (1986). Crocker, Phyllis L. “Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases.” 66 Fordham Law Review 21 (1997). Death Penalty Information Center. “In Ryan’s Words: ‘I Must Act.’” October 13, 2003. Retrieved from ———. “State by State Information.” February 11, 2007. Retrieved from

———. “Innocence: List of Those Freed from Death Row.” July 1, 2007. Retrieved from

214

Bibliography

Denno, Deborah W. “Criminal Law in a Post-Freudian World.” University of Illinois Law Review 601 (2005). Derrida, Jacques. “Declarations of Independence.” Trans. Tom Keenan and Tom Pepper. 15 New Political Science 13 (Summer 1986). ———. “Signature Event Context.” Trans. Alan Bass. In Limited Inc. Ed. Gerald Graff. Evanston, IL: Northwestern University Press, 1988. 1–23. ———. “Force of Law: The Mystical Foundation of Authority.” Trans. Mary Quaintance and Gil Anidjar. In Acts of Religion. Ed. Gil Anidjar. New York: Routledge, 2002. 230–300. Diamond, Bernard. “From M’Naghten to Currens, and Beyond (1962).” In The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Diamond, M.D. Ed. Jacques M. Quen. Hillsdale, NJ: Analytic Press, 1994. 249–263. Dix, George E. “Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations.” 19 American Criminal Law Review 16 (1981). Dubber, Markus Dirk. Victims in the War on Crime: The Use and Abuse of Victims’ Rights. New York: New York University Press, 2002. Dwyer, Jim, Peter Neufeld, and Barry Scheck. Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Random House, 2000. Ekman, Paul. “Dataface: Psychology, Appearance, and Behavior of the Human Face.” July 2, 2007. Retrieved from Erez, Edna. “Victim Participation in Sentencing: And the Debate Goes on. . . .” 3 International Review of Victimology 17 (1994). Fink, Eugen. Nietzsche’s Philosophy. Trans. Goetz Richter. London: Continuum, 2003. Fitzpatrick, Peter. Modernism and the Grounds of Law. Cambridge, U.K.: Cambridge University Press, 2001. Flannery, James P., Kara Howe, and Blanca Dominguez. “Frye, Daubert, Donaldson, and Junk Science: The Admissibility of Novel Scientific Evidence in Illinois.” 18 CBA Record 30 (2004). Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage Books, 1977. ———. “Nietzsche, Genealogy, History.” In Language, Counter-Memory, Practice: Selected Essays and Interviews. Trans. Donald F. Bouchard and Sherry Simon. Ed. Donald F. Bouchard. Ithaca, NY: Cornell University Press, 1977. 139–164. ———. “About the Concept of the ‘Dangerous Individual’ in NineteenthCentury Legal Psychiatry.” Trans. Alain Baudot and Jane Couchman. 1 International Journal of Law and Psychiatry 18 (1978). Frank, Jerome N. Law and the Modern Mind. New York: Brentano, 1930.

Bibliography

215

———. Courts on Trial: Myth and Reality in American Justice. Princeton, NJ: Princeton University Press, 1950. Freud, Sigmund. “Mourning and Melancholia (1917).” In General Psychological Theory: Papers on Metapsychology. Trans. Joan Riviere. Ed. Philip Rieff. New York: Collier Books, 1963. 164–179. ———. The Interpretation of Dreams. Trans. James Strachey. New York: Avon Books, 1965. Gauch, Hugh G., Jr. Scientific Method in Practice. Cambridge, U.K.: Cambridge University Press, 2003. Girard, René. Violence and the Sacred. Trans. Patrick Gregory. Baltimore, MD: Johns Hopkins University Press, 1977. Gottschalk, Marie. “Dismantling the Carceral State: The Future of Penal Policy Reform.” 84 Texas Law Review 1693 (2006). GovTrack.us. H.R. 5107—108th Congress (2004): Justice for All Act of 2004. July 1, 2007. Retrieved from Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York: Henry Holt & Co., 2005. Gross, Samuel R., and Robert Mauro. Death and Discrimination: Racial Disparities in Capital Sentencing. Boston: Northeastern University Press, 1989. Gross, Samuel R., Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil. “Exonerations in the United States 1989 through 2003.” 95 Journal of Criminal Law and Criminology 523 (Winter 2005). Habermas, Jürgen. Justification and Application: Remarks on Discourse Ethics. Trans. Ciaran P. Cronin. Cambridge, MA: MIT Press, 1993. Hamacher, Werner. “Lectio: De Man’s Imperative.” Trans. Susan Bernstein. Reading De Man Reading. Ed. Lindsay and Wlad Godzich. Minneapolis: University of Minnesota Press, 1989. 171–201. Harris, Angela P. “The Jurisprudence of Victimhood.” 3 The Supreme Court Review 77 (1991). Hart, H. L. A. The Concept of Law. Oxford, U.K.: Oxford University Press, 1961. ———. “Legal Responsibility and Excuses.” In Punishment and Responsibility: Essays in the Philosophy of Law. Oxford, U.K.: Clarendon Press, 1968. 28–53. Hediger, Pamela. “Mens Rea: The Impasse of Law and Psychiatry.” 26 Gonzaga Law Review 613 (1990–91). Heidegger, Martin. “The Question Concerning Technology.” In The Question Concerning Technology and Other Essays. Trans. William Lovitt. New York: Harper Colophon, 1977. 3‒35. ———. Nietzsche: Volume I: The Will to Power as Art. Trans. David Farrell Krell. San Francisco: HarperCollins, 1991. ———. Nietzsche: Volume III: The Will to Power as Knowledge and as Metaphysics. Trans. Joan Stambaugh, David Farrell Krell, and Frank A. Capuzzi. San Francisco: Harper & Row, 1987.

216

Bibliography

Horowitz, Irwin A., and Thomas E. Willging. “Changing Views of Jury Power: The Nullification Debate 1787–1988.” 15 Law and Human Behavior 165 (1991). Innocence Project. July 1, 2007. Retrieved at Jasanoff, Sheila. Science at the Bar: Law, Science, and Technology in America. Cambridge, MA: Harvard University Press, 1995. Johnson, Robert. Death Work: A Study of the Modern Execution Process. Belmont, CA: Wadsworth Publishing Co., 1998. Kant, Immanuel. Groundwork of the Metaphysic of Morals. Trans. H. J. Paton. New York: Harper & Row, 1964. ———. The Critique of Judgement (1790). Trans. James Creed Meredith. Oxford, U.K.: Clarendon Press, 1991. ———. The Metaphysics of Morals (1797). Trans. Mary Gregor. Cambridge, U.K.: Cambridge University Press, 1991. Kaufman, Hattie. “The CSI Effect” July 27, 2005. Retrieved from Kaufmann, Walter. Nietzsche: Philosopher, Psychologist, Antichrist. Princeton, NJ: Princeton University Press, 1968. Kaufman-Osborn, Timothy V. From Noose to Needle: Capital Punishment and the Late Liberal State. Ann Arbor: University of Michigan Press, 2002. Kennedy, Duncan. “Freedom and Constraint in Adjudication: A Critical Phenomenology.” 36 Journal of Legal Education 526 (1986). Kennedy, Randall. “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court.” 101 Harvard Law Review 1413 (1988). King, Nancy J. “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom.” 65 University of Chicago Law Review 433 (1998). Lacan, Jacques. “Logical Time and the Assertion of Anticipated Certainty: A New Sophism.” Trans. B. Fink and M. Silver. Ed. Ellie Ragland-Sullivan. Newsletter of the Freudian Field 2 (1988). Lacoue-Labarthe, Philippe. Heidegger, Art and Politics: The Fiction of the Political. Trans. Chris Turner. Oxford, U.K.: Basil Blackwell, 1990. Lanham, Richard A. A Handlist of Rhetorical Terms. 2d ed. Berkeley: University of California Press, 1991. Lawrence, Charles R. III. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” 39 Stanford Law Review 317 (1987). Leahy, Martin J., Norman L. Greene, Robert Blecker, Jefferey L. Kirchmeier, William M. Erlbaum, David Von Drehle, and Jeffrey Fagan. “Rethinking the Death Penalty: Can We Define Who Deserves Death?” 24 Pace Law Review 107 (2003). Leipold, Andrew D. “Rethinking Jury Nullification.” 82 Virginia Law Review 253 (1996).

Bibliography

217

Lewontin, R. C. The Doctrine of DNA: Biology as Ideology. London: Penguin, 1991. ———. The Triple Helix: Gene, Organism, and Environment. Cambridge, MA: Harvard University Press, 2000. Liebman, James S. “The New Death Penalty Debate: What’s DNA Got to Do with It?” 33 Columbia Human Rights Law Review 527 (2002). Liebman, James S., Jeffrey Fagan, and Valerie West. “A Broken System: Error Rates in Capital Cases 1973–1995.” Retrieved from Lyotard, Jean-François. The Differend: Phrases in Dispute. Trans. Georges Van Den Abbeele. Minneapolis: University of Minnesota Press, 1988. Lyotard, Jean-François, and Jean-Loup Thébaud. Just Gaming. Trans. Wlad Godzich. Minneapolis: University of Minnesota Press, 1985. Machiavelli, Niccolò. The Prince. Trans. Robert M. Adams. New York: W. W. Norton & Co., 1992. Mansnerus, Laura. “Damaged Brains and the Death Penalty.” New York Times, July 21, 2001: B9. Marquart, James W., and Jonathan R. Sorensen. “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders.” 23 Loyola of Los Angeles Law Review 5 (1989). Marshall, Lawrence C. “The Innocence Revolution and the Death Penalty.” 1 The Ohio State Journal of Criminal Law 573 (2004). McCord, David. “State Death Sentencing for Felony Murder Accomplices Under the Enmund and Tison Standards.” 32 Arizona State Law Journal 843 (2000). Menand, Louis. “What is ‘Art’?” The New Yorker, February 9, 1998: 40. Menninger, Karl. The Crime of Punishment. New York: Viking Press, 1968. Meyer, Linda. “‘Nothing We Say Matters’: Teague and New Rules.” 61 University of Chicago Law Review 423 (1994). Minow, Martha. “Surviving Victim Talk.” 40 U.C.L.A. Law Review 1415 (1993). Moore, Michael S.. “The Moral Worth of Retribution.” In Punishment and Rehabilitation. Ed. Jeffrie G. Murphy. Belmont, CA: Wadsworth, 1995. 94–130. National Center for Victims of Crime. 1996 Victims’ Rights Sourcebook: A Compilation and Comparison of Victims’ Rights Laws. July 1, 2007. Retrieved from

National Research Council. The Evaluation of Forensic DNA Evidence. Washington, DC: National Academy Press, 1996. Nelkin, Dorothy, and M. Susan Lindee. The DNA Mystique: The Gene as a Cultural Icon. New York: W. H. Freeman & Co., 1995. Nicholson, George. “Victims’ Rights, Remedies, and Resources: A Maturing Presence in American Jurisprudence.” 23 Pacific Law Journal 833 (1992).

218

Bibliography

Nietzsche, Friedrich. “From ‘On Truth and Lie in an Extra-Moral Sense.’” In The Portable Nietzsche. Trans. and ed. Walter Kaufman. New York: Viking Press, 1954, 42–47. ———. Beyond Good and Evil: Prelude to a Philosophy of the Future. Trans. Walter Kaufmann. New York: Vintage, 1966. ———. The Will to Power. Trans. Walter Kaufmann and R. J. Hollingdale. New York: Vintage, 1968. ———. The Gay Science. Trans. Walter Kaufmann. New York: Vintage, 1974. ———. Thus Spake Zarathustra. Trans. Walter Kaufmann. New York: Penguin, 1974. ———. Daybreak: Thoughts on the Prejudices of Morality. Trans. R. J. Hollingdale. Cambridge, U.K.: Cambridge University Press, 1982. ———. Human, All Too Human: A Book for Free Spirits. Trans. Marion Faber and Stephen Lehmann. Lincoln: University of Nebraska Press, 1984. ———. Twilight of the Idols/ The Anti-Christ. Trans. R. J. Hollingdale. London: Penguin, 1990. ———. On the Genealogy of Morality. Trans. Carol Diethe. Ed. Keith AnsellPearson. Cambridge, U.K.: Cambridge University Press, 1994. ———. “Homer on Competition.” Trans. Carol Diethe. In On the Genealogy of Morality. Ed. Keith Ansell-Pearson. Cambridge, U.K.: Cambridge University Press, 1994. 187–194. Nonet, Philippe. “What Is Positive Law?” 100 Yale Law Journal 667 (December 1990). ———. “Judgment.” 48 Vanderbilt Law Review 987 (1995). Nozick, Robert. Philosophical Investigations. Cambridge, MA: Harvard University Press, 1981. Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge, U.K.: Cambridge University Press, 2001. Plato. “Meno.” Plato: The Collected Dialogues. Trans. W. K. C. Guthrie. Ed. Edith Hamilton and Huntington Cairns. Princeton, NJ: Princeton University Press, 1961. 353–384. ———. “Apology.” The Last Days of Socrates. Trans. Hugh Tredennick and Harold Tarrant. London: Penguin, 1993. 37–67. ———. “Crito.” The Last Days of Socrates. Trans. Hugh Tredennick and Harold Tarrant. London: Penguin, 1993. 76–92. ———. “Phaedo.” The Last Days of Socrates. Trans. Hugh Tredennick and Harold Tarrant. London: Penguin, 1993. 109–185. Radin, Margaret Jane. “Cruel Punishment and Respect for Persons: Super Due Process for Death.” 53 Southern California Law Review 1143 (1980). Rapaport, Elizabeth. “Some Questions About Gender and the Death Penalty.” 20 Golden Gate University Law Review 479 (1990).

Bibliography

219

Roane, Kit R., and Dan Morrison. “The CSI Effect: On TV, It’s All Slam-Dunk Evidence and Quick Convictions. Now Juries Expect the Same Thing—and That’s a Big Problem.” July 27, 2005. Retrieved from Roland, David L. “Progress in the Victim Reform Movement: No Longer the ‘Forgotten Victim.’” 17 Pepperdine Law Review 35 (1989). Rosen, Lawrence. “Intentionality and the Concept of the Person.” Criminal Justice: Nomos 27. Ed. J. Roland Pennock and John W. Chapman. New York: New York University Press, 1985. 52–77. Rosenbaum, Ron. “Travels with Dr. Death.” Vanity Fair (May 1990): 140–174. Rousseau, Jean-Jacques. A Discourse on Inequality. Trans. Maurice Cranston. London: Penguin, 1984. Russell, Gregory D. The Death Penalty and Racial Bias: Overturning Supreme Court Assumptions. Westport, CT: Greenwood Press, 1994. Sarat, Austin. “Speaking of Death: Narratives of Violence in Capital Trials.” 27 Law and Society Review 19 (1993). ———. “Abolitionism as Legal Conservativism: The American Bar Association, the Death Penalty, and the Continuing Anxiety About Law’s Violence.” 1997. Retrieved from ———. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2001. ———. Mercy on Trial: What It Means to Stop an Execution. Princeton, NJ: Princeton University Press, 2005. Scarry, Elaine. The Body in Pain: The Making and Unmaking of the World. Oxford, U.K.: Oxford University Press, 1985. Scheflin, Alan, and Jon Van Dyke. “Jury Nullification: The Contours of a Controversy.” 43 Law and Contemporary Problems 51 (Autumn 1980). Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Cambridge, MA: MIT Press, 1985. Schrift, Alan D. Nietzsche and the Question of Interpretation: Between Hermeneutics and Deconstruction. New York: Routledge, 1990. Shapiro, Bruce. “Victims and Vengeance: Why the Victims’ Rights Amendment Is a Bad Idea.” The Nation, February 10, 1997: 11–19. Simon, James F. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster, 1995. Smith, George Bundy, and Janet A. Gordon. “The Admission of DNA Evidence in State and Federal Courts.” 65 Fordham Law Review 2465 (1997). Spaeth, Harold J. Supreme Court Policy Making: Explanation and Prediction. San Francisco: W. H. Freeman, 1979.

220

Bibliography

Steiker, Carol S. “Capital Punishment and American Exceptionalism.” 81 Oregon Law Review 97 (2002). Stockwell, Jamie. “Defense, Prosecution Play to New ‘CSI’ Savvy: Juries Expecting TV-Style Forensics.” July 27, 2005. Retrieved from Tabak, Ronald. “Finality Without Fairness: Why We Are Moving Towards Moratoria on Executions, and the Potential Abolition of Capital Punishment.” 33 Connecticut Law Review 733 (2001). Talbert, Philip. “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision.” 36 U.C.L.A. Law Review 199 (1988). Thaggard, Lee. “DNA Fingerprinting: Overview of the Impact of the Genetic Witness on the American System of Criminal Justice.” 61 Mississippi Law Journal 423 (1991). Tribe, Laurence H., and Michael C. Dorf. “Levels of Generality in the Definition of Rights.” 57 University of Chicago Law Review 1057 (1990). Tsoudis, Olga, and Lynn Smith-Lovin. “How Bad Was It? The Effects of Victim and Perpetrator Emotion on Response to Criminal Court Vignettes.” 77:2 Social Forces (December 1998): 695–722. Tushnet, Mark. “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles.” 96 Harvard Law Review 781 (1983). U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Commission on the Future of DNA Evidence. “Postconviction DNA Testing: Recommendations for Handling Requests.” Washington, DC: National Institute of Justice, 1999. Van den Haag, Ernest. Punishing Criminals: Concerning a Very Old and Painful Question. Lanham, MD: University Press of America, 1991. Von Drehle, David. Among the Lowest of the Dead: The Culture of Death Row. New York: Times Books, 1995. Weber, Max. “Politics as a Vocation.” In From Max Weber: Essays in Sociology. Trans. and ed. H. H. Gerth and C. Wright Mills. New York: Oxford University Press, 1946. 77–128. Wefing, John. “Wishful Thinking by Ronald J. Tabak: Why DNA Evidence Will Not Lead to the Abolition of the Death Penalty.” 33 Connecticut Law Review 861 (2001). Weisberg, Robert. “Deregulating Death.” 8 The Supreme Court Review 305 (1984). Whitehead, K. Elizabeth. “Mourning Becomes Electric: Payne v. Tennessee’s Allowance of Victim Impact Statements During Capital Sentencing Proceedings (Case Note) Payne v. Tennessee 111 S.Ct. 2597 (1991).” 45 Arkansas Law Review 531 (1992).

Bibliography

221

Widder, Marcia A. “Hanging Life in the Balance: The Supreme Court and the Metaphor of Weighing in the Penalty Phase of the Capital Trial.” 68 Tulane Law Review 1341 (1994). Williams, Bernard. Moral Luck. Cambridge, U.K.: Cambridge University Press, 1981. Wittgenstein, Ludwig. Philosophical Investigations. Trans. G. E. M. Anscombe. New York: MacMillan Publishing Co., 1958. Young, L. Benjamin. “Justice Scalia’s History and Tradition: The Chief Nightmare in Professor Tribe’s Anxiety Closet.” 78 Virginia Law Review 581 (1992). Young, Marlene A. “Emerging Issues in Victim Assistance.” 17 Pepperdine Law Review 129 (1989). Zimring, Franklin E., and Gordon Hawkins. Capital Punishment and the American Agenda. Cambridge, U.K.: Cambridge University Press, 1986. cases Barclay v. Florida, 463 U.S. 939 (1983) Barefoot v. Estelle, 463 U.S. 880 (1983) Booth v. Maryland, 482 U.S. 496 (1986) California v. Ramos, 463 U.S. 992 (1983) Callins v. Collins, 510 U.S. 1141 (1994) Eddings v. Oklahoma, 455 U.S. 105 (1982) Enmund v. Florida, 458 U.S. 782 (1982) Ford v. Wainwright, 477 U.S. 399 (1986) Frye v. United States, 293 F. 1013 (1923) Furman v. Georgia, 408 U.S. 238 (1972) Godfrey v. Georgia, 444 U.S. 420 (1980) Gregg v. Georgia, 428 U.S. 153 (1976) Herrera v. Collins, 506 U.S. 390 (1993) Jurek v. Texas, 428 U.S. 262 (1976) Lockett v. Ohio, 438 U.S. 586 (1978) Mackey v. United States, 401 U.S. 667 (1971) McCleskey v. Kemp, 481 U.S. 279 (1987) McGautha v. California, 402 U.S. 183 (1971) Payne v. Tennessee, 501 U.S. 808 (1990) People v. Brown, 726 P. 2d 516 (Cal. 1985) People v. Castro, 545 N.Y.S. 2d 985 (Sup. Ct. 1989) Peters v. Kiff, 407 U.S. 493 (1972) Proffitt v. Florida, 428 U.S. 242 (1976) Pulley v. Harris, 465 U.S. 37 (1984)

222

Bibliography

Regina v. M’Naghten, 10 Clark and F. 200, 8 Eng. Rep. 718 (1843) Roberts v. Louisiana, 428 U.S. 325 (1976) Roper v. Simmons, 543 U.S. 551 (2005) Snyder v. Massachusetts, 291 U.S. 97 (1934) South Carolina v. Gathers, 490 U.S. 805 (1988) Spring Co. v. Edgar, 99 U.S. 645 (1878) State v. Wood, Utah, 648 P. 2d 71 (1982) State v. Woodall, 385 S.E. 2d 253 (W. Va. 1989) Teague v. Lane, 489 U.S. 288 (1989) Tison v. Arizona, 481 U.S. 137 (1987) Trop v. Dulles, 356 U.S. 86 (1958) Vasquez v. Harris, 503 U.S. 1000 (1992) Walton v. Arizona, 497 U.S. 639 (1990) Woodson v. North Carolina, 428 U.S. 280 (1976) Zant v. Stephens, 462 U.S. 862 (1982)

Index

Abolition of capital punishment, 26, 170n44, 173n114; new abolitionism, 26, 201–2n58 Action, 145–46, 152, 161–62 Actus reus, 75, 76, 86, 144 Adams, Julian, 115 Adkins, A. W. H., 143–44 Adorno, Theodore, 25, 104–7, 110; Negative Dialectics, 104–7 Aesthetic judgment, 45, 48–49, 57 Agency, construction of, 99–102, 192n52, 203n76 Agent, of judgment, 142–45; absent, 20–21; like sovereign, 147–49 Aggravating circumstances, 31, 32, 35, 36, 50–51, 57, 59–62, 91, 140–41, 175n9, 177n39 American exceptionalism, 2, 165n4 Apparent world, 6, 7, 9, 10, 11–15, 30, 38, 39, 40, 47, 69, 72, 81, 82, 84, 85, 87, 103–6, 109, 110, 118–19, 121–23, 126–28, 130, 134, 137; imperfect social order, 38, 40; nonideal, 37, 39, 40; versus real world, 7–8, 10–16, 22–27 Appropriateness, determination of, 18–19, 33, 34, 36, 39, 40, 66, 74, 83, 91, 136–37, 147, 177n39 Arbitrariness, 16, 19, 21, 24, 27, 123, 181–82n53; like being struck by lightning, 19, 155, 200n33. See also Irrationality Arendt, Hannah, 25–26, 96, 145–46, 149–50, 152–53, 158, 189nn31, 32, 189–90n33, 194n74, 195n79, 206n31; The Human Condition, 145–46, 149, 194n74, 195n78; Lectures on Kant’s

Political Philosophy, 152–53, 206n31; On Revolution, 189nn28, 31, 32, 189–90n33 Aristotle, 23, 41, 43 Ascetic ideal, 110–11 Augustine, 11, 171n53 Austin, John, 147 Austin, J. L., 24, 84–86 Baldus study, 63–66, 180–81n44, 181nn45, 50, 192–93n54 Barclay v. Florida, 51 Barefoot v. Estelle, 51–52, 185n26 Becoming, 6–7, 26, 135; versus being, 6–7, 168n24 Bedau, Hugo, 174n120 Beginning, principle of, 27, 145–46, 147, 151, 152, 155, 160–61, 163 Being, 4, 5, 6–7, 27; versus becoming, 6–7, 168n24 Bendor, Catherine, 98 Benjamin, Walter, 2, 27, 154 Bentham, Jeremy, 108, 195n79 Berger, Vivian, 100–101, 194n76 Berlant, Lauren, 188–89n20 Best, Joel, 190n38 Bias, 142, 177n39; racial bias, 63–69, 180–81n44, 181n50, 181–82n53, 182nn56, 57, 192–93n54 Bifurcated trial, 31–32, 33, 174n6 Blackmun, Harry, 46–47, 65–67, 127, 157–58, 201n56 Blackstone, William, 74–75 Blecker, Robert, 139–42, 144, 205n13 Booth v. Maryland, 89–90, 92, 93, 100–101, 107, 187n4; facts of, 89–90

224

Index

Bork, Robert, 146–47 Bowers, William J., 132 Brennan, William, 39, 65, 78, 79, 156–57, 159, 181–82n53, 184n14, 203n1 Brown, Wendy, 192n48 Burger, Warren E., 22, 35, 38, 40, 157 California v. Ramos, 51, 52–53 Callins v. Collins, 44, 46, 201n56 Camus, Albert, 159 Canguilhem, Georges, 82 Capital punishment system, postFurman, 31, 174n5 Cardozo, Benjamin, 100 Carter, Stephen, 100, 192–93n54 Cassell, Paul, 97–98, 190–91n41 Causality, 5, 8, 99–100, 134, 146, 168n20, 169n35, 171n62, 171–72n67, 203n76 Certainty, 13, 14, 15, 24, 121–22, 128–30, 131, 140, 160, 194n73 Challenging revealing, 27, 130 Character, 144–45, 149 Christianity, 10–12, 14, 15, 121, 171n62, 193n65 Civil transactions, 83–84, 86; invalidating conditions of, 83–84, 86 Command, 7, 10, 132 Common knowledge, 77–78 Common sense, 24, 46, 48–49, 55–69, 179n3 Communication community, 49–50, 56–69; community of reason, 49, 59 Community sense, 152–53 Commutation, 123, 125–27. See also Exoneration; Mercy Competence, 148–50 Conditions of effective domination, 152 Connolly, William E., 192n48 Conscious unhappiness, 105, 106 Consciousness, 12, 105, 171n62, 171–72n67 Consistency, 33, 41, 177n40; false, 41 Constable, Marianne, 173n102, 175–76n14

Convention, 25, 83, 86–87, 186n50; social fact, 72, 81, 157 Cooley, Craig, 122 Counting, 13, 61–62, 81 Cover, Robert 21, 151–52 Critical legal studies, 142, 193n66 Crocker, Phyllis, 132 Cruel and unusual punishment, 2, 6, 19–20, 37, 89, 156, 178n56, 187n4. See also Eighth amendment CSI effect, 120–21 Culpability, 70, 71, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 86, 87, 101–2, 136, 154. See also Mental state Dangerous individual, 184n23, 184–85n25 Death, as absolute, 25, 159 Death is different, 3, 34, 36, 65, 156–59, 163, 167n12, 181–82n53, 196n87 Death penalty sentencing statutes: Georgia, 32; North Carolina, 33–34 Decision, 18–19, 21–22, 27, 139, 141, 143–44, 148–49, 151–52, 156–58; Schmitt on, 147–48, 206–7n43, 207n47 Declaration of Independence, 95–96, 189–90n33 Denno, Deborah, 80 Deregulation, of death penalty, 50–54 Derrida, Jacques, 95–96, 142–43; “Force of Law,” 142–43 Desert, 65, 132, 135, 136–37. See also Retribution Determinant judgment, 45, 178n58 Dialectics, 7, 9, 10 Diamond, Bernard, 80 Discretion, 17–18, 38, 141, 181n45; dilemma of, 41–42, 46; jury and, 69. See also Twin objectives Discrimination, 65, 66 Divine violence, 154 DNA, 26, 112–14, 117, 118, 119, 121–24, 125, 130–35, 196nn2, 3, 196–97n4, 202n65; evidence, 26, 27, 114–15, 116, 120, 121, 122–23, 131–33, 197–98n13,

Index 198n14, 198–99n22; technology, 26, 114, 118, 120, 124–26, 128, 135, 196n3, 196–97n4, 202n65; testing, 115–16, 117, 118, 119, 120, 122–24, 131, 133, 196n3, 196–97n4, 197n10, 197–98n13, 200n42 Dotson, Gary, 200n42 Doubt, 10, 12, 66, 99, 137, 194n73 Due process, 18; “super” for death, 23, 37, 40. See also Fourteenth amendment Duress, 83–84, 183–84n12 Dwyer, Jim, 116 Eddings v. Oklahoma, 36, 41, 42, 177–78n48 Effect, 84, 86–87, 99–101, 153–54; results culture, 144 Eighth amendment, 2, 19, 35, 37, 50–51, 63, 88–89, 91, 94, 127, 132, 156, 178n56, 187n4, 188n19. See also Cruel and unusual punishment Elliott, Ray, 116 Emotion, impact of, 98, 108, 132, 139–40, 142, 187n4, 188–89n20, 190–91n41, 191nn42, 44, 45, 202–3n69 Enmund v. Florida, 71–74, 76 Equal protection clause, 63, 147 Equal treatment, 23, 30, 41–47. See also Twin objectives Erez, Edna, 191n45 Error, 119, 122, 124, 126, 131, 133–34, 140, 199–200n32, 200n41, 200–201n44, 201n55; philosophical, 5, 6, 16, 26; risk of, 37, 133; in sentencing, 36 Exception, 125–26, 147–49, 150, 156, 206–7n43 Excuse, 75, 83, 183–84n12 Excusing conditions, 83–84 Exoneration, 121, 124–25, 198n19, 198–99n22, 199–200n32, 200n42, 201n55. See also Commutation; Mercy Expatriation, 159 Expedient, 9–10

225

Experts, 78–79; psychiatric, 52, 184n23, 184–85n25; testimony of, 79, 106, 115, 120, 185n26 Expiation, 154 Fagan, Jeffrey, 140–41 Faith, 11–12, 14–16, 170–71n48, 193n65 Fallibility, 39, 119, 124–27 Fatalism, 135. See also Meaninglessness; Nihilism Felony murder, 73–74, 183n7 Finality, 2, 127, 157, 158–61, 163, 167n12 Forces, 78, 141–45, 153, 155, 157–58, 161–62 Ford v. Wainwright, 188n19 Forensic evidence, 120–21, 122, 197n10 Forgiveness, 158 Fortune, 150–52, 161–62 Foucault, Michel, 17, 20–21, 79, 184n23, 184–85n25 Fourteenth amendment, 17–18, 19, 35, 50–51, 63, 127, 147. See also Due process Frank, Jerome, 142, 205nn17, 18 Freud, Sigmund, 80, 139, 155, 192n52 Frye v. United States, 115; Frye standard, 115, 197n10 Fundamentalism, 137 Furman v. Georgia, 2, 5–6, 16, 19–22, 27, 39, 42, 94, 136, 155–59, 178n56, 203n1; consequences of, 155–56; as exemplary example, 4, 155–58 Future dangerousness, 52, 53, 185n26 Gauch, Hugh, 199n24 General and particular, relation between, 41, 42, 43, 45, 107–8, 148, 151, 177–78n48, 178n58 Girard, René, 209n100 Godfrey v. Georgia, 50–51 Good, definitions of: Kant, 12–13, 145–46; liberal, 3; utilitarian, 13, 81 Greeks, 7–9, 143–44, 169n29 Gregg v. Georgia, 23, 29–30, 32–34, 39–40, 60, 175n9, 177n40; metaphysical character of, 30

226

Index

Gross, Samuel, 124–25 Guidance: informal, 23–24, 46; of juries, 2, 32–33, 53, 62, 67–68; need for 22, 38; rejection of, 18. See also Regulation Guilt, 75–76, 124, 131–32, 175n9. See also Culpability Guilt phase, 31–32, 67–68; conflation with sentencing or penalty phase, 54, 60–61 Habeas corpus, 51–52, 126–27, 199–200n32 Habermas, Jürgen, 24, 49, 56, 63, 64, 68 Hamacher, Werner, 49 Happiness, 7, 11, 13–14; greatest happiness principle, 13 Harlan, John, 167n12 Harmless error, 59–60 Harris, Angela, 190n36, 191n44 Harris, Robert Alton, 160, 209n102 Hart, H. L. A., 24, 73, 83–86, 186n50 Heidegger, Martin, 1, 26–27, 103, 130, 202n60 Herrera v. Collins, 126–27, 199–200n32, 203n2 Heterogeneous open systems, 134–35 Homer, 143–44 Ideal role taking, 56 Idealism, 55, 134 Identitarian philosophy, 105, 106 Iliad, 143–44 Impartiality, 67–68, 138, 153 Inclinations, 7, 142, 196n88 Individual consideration, 23, 30, 34, 36, 37, 41–47, 178n50, 202–3n69. See also “Twin objectives” Infelicities, 85–86 Innocence Project, 116, 198n16 Innocence revolution, 117–18, 119 Insanity, 83–84, 183n12, 188n19 Instincts, 7–9, 15, 40, 142, 171–72n67 Intention, 73, 74, 75, 78, 80, 85–87, 102, 153–54, 184n14

Interpretation, 135, 138, 146–47, 151–52, 153, 154–55, 158 Irrationality, 16, 170n44. See also Arbitrariness Jasanoff, Sheila, 122 Jeffreys, Alec, 114 Johnson, Robert, 20, 173n110 Judgment, 5, 18–19, 27, 126, 142, 146; as an act, 27, 145–46, 149, 151–55, 158, 160, 161; Arendt on, 206n31; as an art, 69; as an experience, 138–40, 145, 155, 163; Kant on, 5, 45–46, 48–49; Nietzsche on, 171–72n67; Nonet on, 5; the problem of, 3–6, 28, 33, 137 Jurek v. Texas, 53, 175n9 Jury nullification, 28, 174nn120, 121 Jury selection, 67–68, 182nn 56, 57 Justice, 19, 21, 23, 29, 37–38, 40, 41, 47, 97, 143, 162, 177–78n48 Justice for All Act of 2004, 95 Justification, 3, 19, 56, 167n14 Kant, Immanuel, 5, 12–13, 24, 45, 46, 48, 49, 56, 57, 145, 171n64, 176–77n34, 179n3 Kaufman-Osborn, Timothy V., 190n35 Kaufmann, Walter, 162 Kennedy, Duncan, 138–39, 142, 161 Kirchmeier, Jeffrey, 140 Kirwin, Barbara, 193n60 Lacoue-Labarthe, Philippe, 187n5 Lacuna, 139, 141 Law, 95–96, 125–26, 142–43, 189n28, 193n66; Arendt on, 189n31; Austin on, 147; Bork on, 146; Frank on, 205n18; Kant on, 13, 45, 56, 171n64 Lawful lawlessness, 126 Legal positivism, 81, 83 Legal realism, 59, 68, 142, 193n66, 205nn17, 18 Legal reasoning, 138–39; as a convention of judicial decision making, 92–93

Index Legitimacy, 3, 96–97, 137, 146, 167n14, 170n44, 175–76n14 Lewis, Dorothy Otnow, 193n60 Lewontin, Richard, 133–35 Liberalism, 3, 192n48 Liebman, James, 121, 198n19, 199–200n32 Liebman Report, 140, 204n10 Life without possibility of parole (LWOP), 163, 209n112 Lockett v. Ohio, 35, 36–37, 38, 40, 42, 176n17, 195n82 Machiavelli, Niccolò, 150–51, 161–62 Mackey v. United States, 167n12 Mandatory death penalty, 33–34, 174n120 Marshall, Larry, 117–19 Marshall, Thurgood, 68, 92, 93, 94, 187n11, 203n1 McCleskey v. Kemp, 50, 63–69, 181nn45, 50, 181–82n53 McCord, David, 77–78, 184n19 McGautha v. California, 6, 17–19, 157 Meaninglessness, 11–12, 15. See also Fatalism; Nihilism Menand, Louis, 69 Menninger, Karl, 80 Mens rea, 75, 76, 77, 80, 86, 87, 144 Mental state, 71–72, 74–80, 86–87; See also Culpability Mercy, 18, 26, 127, 130, 132; See also Commutation; Exoneration Metaphor, 12, 24, 56–59, 60–62, 69 Metaphysics, 4, 7, 103–4, 107, 109, 162–63, 168n20, 193n65 Metaphysics, Nietzsche’s history of, 4–16, 103, 137, 168nn17, 26; first stage, 1, 7–10, 19–21; second stage, 10–12, 23, 29, 30, 39; third stage, 12–13, 24, 48, 55; fourth stage, 13–14, 24, 70, 72, 80–81, 85; fifth stage, 14–15, 26, 88, 103, 105–6; sixth stage 15, 26, 112, 113–14, 127–28

227

Methodology, 4, 16–17, 28; general goals, 27–28; metaphysical analysis, 8–10, 17, 28; phenomenological approach, 137–38 Metonymy, 109 Meyer, Linda, 188n18 Milgram, Stanley, 54 Mill, John Stuart, 13 Miller, Robert, 116–17 Minow, Martha, 108–9 Mitigating circumstances, 31, 32, 35, 57, 75, 91, 108, 140, 175n9, 176n17, 177n39, 184n13, 195n82 Modern liberal state, 3 Moore, Michael S., 176–77n34 Morality, 12, 13, 171nn62, 64, 171–72n67, 176n28, 183n12, 184n14; Adorno on, 105–7; of retribution, 38–39, 176–77n34 Mullis, Kary, 114 Mythical violence, 154 National Commission on the Future of DNA Evidence, 118, 120, 198–99n22 National Research Council, 122 Neufeld, Peter, 116–18, 121, 122, 198n16 Nietzsche, Friedrich, 1, 4–16, 19, 28, 29, 39, 40, 48, 55, 56, 70, 81, 88, 103, 110–11, 112, 127, 130, 132–33, 135, 136, 155, 162, 168nn20, 24, 169nn29, 30, 35, 170–71n48, 171n62, 171–72n67, 192n52, 193nn62, 65, 203n76; Beyond Good and Evil, 16; Daybreak, 162; The Gay Science, 171–72n67, 193nn62, 65; “Homer on Competition,” 169n29; On the Genealogy of Morality, 110–11, 155; Twilight of the Idols/The Antichrist, 1, 4–5, 7, 29, 48, 70, 88, 112, 136, 168n24, 169nn30, 35, 170–71n48, 171n62, 203n76; The Will to Power, 168n20 Nihilism, 15, 113–14; active, 132–33; passive, 132; practical, 15–16. See also Fatalism; Meaninglessness

228

Index

Nonet, Philippe, 5 Normal, 81–82 Normal person, 72, 76, 79–80, 86, 87. See also Reasonable person; Subject at law Normative claim, 25, 28, 72, 82, 105, 109, 194n73 Nozick, Robert, 69 Objectivity, 46, 68, 94, 113, 133 O’Connor, Sandra Day, 36, 76, 91–92, 109–10 Odysseus, 143 Ordinary language philosophy, 84–86 Originalism, 146–47, 187–88n13; generality, 147; neutrality, 147 Pain, 13, 25, 190n35, 192n47, 194nn73, 74, 195n79; and suffering, 25, 26, 89, 95, 96, 97, 98, 99, 101–11 Payne v. Tennessee, 25–26, 88–95, 97–104, 109–11, 187n11, 188n15; facts of, 90–91 Penalty phase, 31–32, 90, 91; Weisberg on, 51–53, 54, 60. See also Sentencing phase People v. Brown, 58 Performative utterance, 84 Peters v. Kiff, 68 Phren and thumos, 143–44 Philosophy, supreme concepts of, 6 Plato, 7, 8, 13, 14, 103, 110, 121, 196n88; “Crito,” 170n45; “Meno,” 193n65, 205n13; “Phaedo,” 169n34, 196n88 Pleasure, 13, 15, 103, 171n62, 195n79, 196n88; Adorno on, 105; and displeasure, 15, 103 Polymerase Chain Reaction (PCR), 114, 196n3 Populism, 2, 94–95, 97–98, 157, 165–66n5 Positivism, 13–14, 72, 80 Powell, Lewis, 41, 42, 64–65, 68–69, 177–78n48, 181n45 Proceduralism, 23, 40, 64, 140 Proffitt v. Florida, 175n9

Progress, 16 Proof, 11 Psychology, 72, 78–79, 142, 144, 176n17, 185n26, 192n47; fragmented, 143–44; threat to law, 79–80 Pulley v. Harris, 177n40 Radin, Margaret Jane, 36–37, 40, 41, 42, 176n28, 177n39; See also Due process, “super” for death; Standard, human dignity or personhood Rationality, 7–9, 20, 21, 22, 181–82n53 Rationalization, 26–27, 31, 65 Real world, 6–15, 30, 38, 39, 40, 47, 55, 69, 72, 81, 85, 103–6, 110, 118, 127–28, 133, 134, 136, 137, 156; versus apparent world, 7–8, 10–16, 22–27 Reason, 5, 6, 7, 9, 11, 20, 21–22, 39, 69, 98, 168n20, 190–91n41, 191n44, 203n76; community of, 49, 59; Kantian, 56 Reasonable person, 77. See also Normal person; Subject at law Reckless indifference to human life, 71, 76, 77–78, 184nn14, 19; depraved heart murder, 77 Reflective judgment, 45, 47, 139 Regina v. M’Naghten, 183–84n12 Regulation, 18, 23–24, 170–71n48; failure of, 65–67, 182n56; Weisberg on, 51–54, 58–59, 60–61. See also Guidance Rehnquist, William, 60–62, 93–94, 188n15 Reliability, 23, 30, 34, 36, 39, 40, 43, 45, 46, 55, 63, 66–67, 125, 175–76n14, 177n40 Report of the Royal Commission on Capital Punishment, 18 Responsibility, based on: knowledge, 183–84n12; results, 144; will, 72, 136, 183 Restriction Fragment Length Polymorphism Test (RFLP), 114, 196–97n4

Index Retribution, 38–39, 131, 133, 154, 203n1; retributivism, 136, 176–77n34. See also Desert Revenge, 95, 209n100; on life, 9, 110, 193n62 Right-and-wrong test, 183–84n12 Rights revolution, 117 Romney, Mitt, 112 Rosen, Lawrence, 183n8 Rousseau, Jean-Jacques, 190–91n41 Rule of law, 125, 146 Russell, Gregory, 67–68, 182nn56, 57 Ryan, George, 26, 112, 113–14, 123–30, 135, 201–2n58 Sarat, Austin, 26, 125–26, 201–2n58 Scalia, Antonin, 43–45, 100–101, 178nn50, 56 Scarry, Elaine, 25, 99, 192n52, 194nn73, 74 Scheck, Barry, 116–118, 121, 122, 198n16 Schmitt, Carl, 26, 27, 147–48, 156, 206–7n43, 207nn44, 47 Schrift, Alan D., 168n26 Schwab, George, 207n44 Science, 11, 13–14, 79, 82, 117, 118, 121–23, 133–35, 193n65, 199n24 Self-preservation, 7, 9, 10 Self-tolerance, 14 Senses, 7, 11; sensuous experience, 13, 24, 25, 88, 104, 110 Sentencing phase, 31, 53, 90, 91, 95; See also Penalty phase Simon, James, 93 Smith, George Bundy and Janet Gordon, 197–98n13 Snell, Bruno, 143 Snyder v. Massachusetts, 100 Social contract theory, 108 Social science, 63–65, 180–81n44, 182n56, 184n23, 184–85n25 Sociological school, 142 Socrates, 7–11, 16, 17, 20, 21, 22, 169n34, 170n45 Sophists, 19

229

Souter, David, 101–2 South Carolina v. Gathers, 89–90, 92, 93, 187n4; facts of, 90 Sovereign, 10, 21; Foucault on, 20–21, 143; judge as, 147–49; Schmitt on, 147–49, 156, 207nn44, 47 Sovereignty: political versus legal, 123–27, 131, 148, 157, 158, 166n5, 170n44, 200n47; separation of powers, 125–26, 157 Speech act, 85–86 Standard, 33, 36, 57, 60, 61, 206–7n43; common knowledge as, 77, 78, 87; DNA as, 113, 118, 122; governing, 17, 18, 33; human dignity or personhood, 37, 176n28; moral, 37; normative, 109, 178, 195n84; pain as, 105–7 Standing reserve, 130, 202n60 Stare decisis, 89, 91–95, 187n11, 188nn15, 18 State v. Wood, 57 Steiker, Carol, 165n4 Stevens, John Paul, 65–66, 97–98 Stewart, Potter, 19–21, 32, 34, 155, 156–57, 159, 203n1 Stockwell, Jamie, 120 Subject at law, 72, 79, 80, 81, 83, 144, 183n8, 183–84n12, 184n14, 186n50, 190n35, 193n60. See also Normal person; Reasonable person Subject of judgment, 25, 142, 144, 157 Supreme Court, uniqueness of, 93, 157, 159 Symposium on Capital Punishment, Association of the Bar of the City of New York, 2002, 139–41, 204n11 Tabak, Ronald, 131, 133, 202n65 Talbert, Philip, 186–87n3 Teague v. Lane, 188n18 Time, 139, 142, 148, 151, 160–62 Tison v. Arizona, 24, 70–74, 76–82, 85–87, 184nn14, 19; facts of, 70–71, 73–74, 78 Trop v. Dulles, 159

230

Index

Truth, 4, 7, 10–13, 16, 22–26, 95, 96–98, 102–3, 104, 118, 120, 122, 124, 129–30, 133–35, 168n20, 193n65, 196n88, 202n65; versus untruth, 28; will to, 102–3, 110, 193n62 Tsoudis, Olga and Lynn Smith-Lovin, 191n45 Twin objectives, 31, 41–47, 177–78n48, 178nn50, 55; twin principles, 30–31. See also Equal treatment; Individual consideration Utilitarianism, 108 Utility, 13–14, 81, 103–4 Validity, 14, 27, 137, 138, 150–51, 153; Arendt on, 153; Habermas on, 56, 68 Van den Haag, Ernest, 3 Vasquez v. Harris, 160 Victim, 96–97, 99–102, 106–10, 190nn36, 38, 193n60, 194n75, 195nn80, 84; survivors, 25 Victim impact evidence, 88–90, 91, 92, 94, 95, 97, 98, 108, 110, 186–87n3, 187n4, 194n75, 195n82, 196n88; statements, 25, 90, 96, 98, 101, 106–7, 186–87n3, 195n80 Victims’ right movement, 94–95, 97, 188–89n20, 189n22, 190–91n41, 194n75, 195n80

Violence, 21, 151–52, 153, 155, 158. See also Divine violence; Mythical violence Virtu, 138, 150–52 Virtue, 7, 9, 11, 16, 205n13 Walton v. Arizona, 43–44, 178nn50, 56 Web of human relationships, 149–50, 153 Weber, Max, 3, 167n14 Wefing, John, 131–32 Weighing, 13, 31, 54, 57–58, 62 Weisberg, Robert, 49, 51–52, 53, 54–55, 58, 59, 60–61, 69 White, Byron, 92 Widder, Marcia, 62 Will, 84, 183n8; Augustine on, 171n53; free, 72, 74–75, 150; Kant on, 12–13, 56; Nietzsche on, 171–72n67, 203n76; powerlessness of, 96, 154; vicious, 75, 81 Williams, Bernard, 69 Wittgenstein, Ludwig, 85 Woodson v. North Carolina, 33–34, 35, 42 Woodson-Lockett line of cases, 42, 43–44, 52, 178n50 Young, Marlene, 94 Zant v. Stephens, 50, 51, 59–62, 141 Zimring, Franklin and Gordon Hawkins, 2, 173n114, 208n85

ultural Memory

in the Present

Jennifer L. Culbert, Dead Certainty: The Death Penalty and the Problem of Judgment Samantha Frost, Lessons from a Materialist Thinker: Hobbesian Reflections on Ethics and Politics Regina Mara Schwartz, When God Left the World: Sacramental Poetics at the Dawn of Secularism Gil Anidjar, Semites: Race, Religion, Literature Ranjana Khanna, Algeria Cuts: Women and Representation, 1830 to the Present Esther Peeren, Intersubjectivities and Popular Culture: Bakhtin and Beyond Eyal Peretz, Becoming Visionary: Brian De Palma’s Cinematic Education of the Senses Diana Sorensen, A Turbulent Decade Remembered: Scenes from the Latin American Sixties Hubert Damisch, A Childhood Memory by Piero della Francesca Dana Hollander, Exemplarity and Chosenness: Rosenzweig and Derrida on the Nation of Philosophy Asja Szafraniec, Beckett, Derrida, and the Event of Literature Sara Guyer, Romanticism After Auschwitz Alison Ross, The Aesthetic Paths of Philosophy: Presentation in Kant, Heidegger, Lacoue-Labarthe, and Nancy Gerhard Richter, Thought-Images: Frankfurt School Writers’ Reflections from Damaged Life Bella Brodzki, Can These Bones Live? Translation, Survival, and Cultural Memory Rodolphe Gasché, The Honor of Thinking: Critique, Theory, Philosophy Brigitte Peucker, The Material Image: Art and the Real in Film

232

Cultural Memory in the Present

Natalie Melas, All the Difference in the World: Postcoloniality and the Ends of Comparison Jonathan Culler, The Literary in Theory Michael G. Levine, The Belated Witness: Literature, Testimony, and the Question of Holocaust Survival Jennifer A. Jordan, Structures of Memory: Understanding German Change in Berlin and Beyond Christoph Menke, Reflections of Equality Marlène Zarader, The Unthought Debt: Heidegger and the Hebraic Heritage Jan Assmann, Religion and Cultural Memory: Ten Studies David Scott and Charles Hirschkind, Powers of the Secular Modern: Talal Asad and His Interlocutors Gyanendra Pandey, Routine Violence: Nations, Fragments, Histories James Siegel, Naming the Witch J. M. Bernstein, Against Voluptuous Bodies: Late Modernism and the Meaning of Painting Theodore W. Jennings, Jr., Reading Derrida / Thinking Paul: On Justice Richard Rorty and Eduardo Mendieta, Take Care of Freedom and Truth Will Take Care of Itself: Interviews with Richard Rorty Jacques Derrida, Paper Machine Renaud Barbaras, Desire and Distance: Introduction to a Phenomenology of Perception Jill Bennett, Empathic Vision: Affect, Trauma, and Contemporary Art Ban Wang, Illuminations from the Past: Trauma, Memory, and History in Modern China James Phillips, Heidegger’s Volk: Between National Socialism and Poetry Frank Ankersmit, Sublime Historical Experience István Rév, Retroactive Justice: Prehistory of Post-Communism Paola Marrati, Genesis and Trace: Derrida Reading Husserl and Heidegger Krzysztof Ziarek, The Force of Art Marie-José Mondzain, Image, Icon, Economy: The Byzantine Origins of the Contemporary Imaginary Cecilia Sjöholm, The Antigone Complex: Ethics and the Invention of Feminine Desire Jacques Derrida and Elisabeth Roudinesco, For What Tomorrow . . . : A Dialogue

Cultural Memory in the Present

233

Elisabeth Weber, Questioning Judaism: Interviews by Elisabeth Weber Jacques Derrida and Catherine Malabou, Counterpath: Traveling with Jacques Derrida Martin Seel, Aesthetics of Appearing Nanette Salomon, Shifting Priorities: Gender and Genre in Seventeenth-Century Dutch Painting Jacob Taubes, The Political Theology of Paul Jean-Luc Marion, The Crossing of the Visible Eric Michaud, The Cult of Art in Nazi Germany Anne Freadman, The Machinery of Talk: Charles Peirce and the Sign Hypothesis Stanley Cavell, Emerson’s Transcendental Etudes Stuart McLean, The Event and Its Terrors: Ireland, Famine, Modernity Beate Rössler, ed., Privacies: Philosophical Evaluations Bernard Faure, Double Exposure: Cutting Across Buddhist and Western Discourses Alessia Ricciardi, The Ends of Mourning: Psychoanalysis, Literature, Film Alain Badiou, Saint Paul: The Foundation of Universalism Gil Anidjar, The Jew, the Arab: A History of the Enemy Jonathan Culler and Kevin Lamb, eds., Just Being Difficult? Academic Writing in the Public Arena Jean-Luc Nancy, A Finite Thinking, edited by Simon Sparks Theodor W. Adorno, Can One Live After Auschwitz? A Philosophical Reader, edited by Rolf Tiedemann Patricia Pisters, The Matrix of Visual Culture: Working with Deleuze in Film Theory Andreas Huyssen, Present Pasts: Urban Palimpsests and the Politics of Memory Talal Asad, Formations of the Secular: Christianity, Islam, Modernity Dorothea von Mücke, The Rise of the Fantastic Tale Marc Redfield, The Politics of Aesthetics: Nationalism, Gender, Romanticism Emmanuel Levinas, On Escape Dan Zahavi, Husserl’s Phenomenology Rodolphe Gasché, The Idea of Form: Rethinking Kant’s Aesthetics Michael Naas, Taking on the Tradition: Jacques Derrida and the Legacies of Deconstruction Herlinde Pauer-Studer, ed., Constructions of Practical Reason: Interviews on Moral and Political Philosophy

234

Cultural Memory in the Present

Jean-Luc Marion, Being Given That: Toward a Phenomenology of Givenness Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment Ian Balfour, The Rhetoric of Romantic Prophecy Martin Stokhof, World and Life as One: Ethics and Ontology in Wittgenstein’s Early Thought Gianni Vattimo, Nietzsche: An Introduction Jacques Derrida, Negotiations: Interventions and Interviews, 1971–1998, ed. Elizabeth Rottenberg Brett Levinson, The Ends of Literature: The Latin American “Boom” in the Neoliberal Marketplace Timothy J. Reiss, Against Autonomy: Cultural Instruments, Mutualities, and the Fictive Imagination Hent de Vries and Samuel Weber, eds., Religion and Media Niklas Luhmann, Theories of Distinction: Re-Describing the Descriptions of Modernity, ed. and introd. William Rasch Johannes Fabian, Anthropology with an Attitude: Critical Essays Michel Henry, I Am the Truth: Toward a Philosophy of Christianity Gil Anidjar, “Our Place in Al-Andalus”: Kabbalah, Philosophy, Literature in Arab-Jewish Letters Hélène Cixous and Jacques Derrida, Veils F. R. Ankersmit, Historical Representation F. R. Ankersmit, Political Representation Elissa Marder, Dead Time: Temporal Disorders in the Wake of Modernity (Baudelaire and Flaubert) Reinhart Koselleck, The Practice of Conceptual History: Timing History, Spacing Concepts Niklas Luhmann, The Reality of the Mass Media Hubert Damisch, A Theory of /Cloud/: Toward a History of Painting Jean-Luc Nancy, The Speculative Remark: (One of Hegel’s Bons Mots) Jean-François Lyotard, Soundproof Room: Malraux’s Anti-Aesthetics Jan Patoˇcka, Plato and Europe Hubert Damisch, Skyline: The Narcissistic City Isabel Hoving, In Praise of New Travelers: Reading Caribbean Migrant Women Writers Richard Rand, ed., Futures: Of Jacques Derrida

Cultural Memory in the Present

235

William Rasch, Niklas Luhmann’s Modernity: The Paradoxes of Differentiation Jacques Derrida and Anne Dufourmantelle, Of Hospitality Jean-François Lyotard, The Confession of Augustine Kaja Silverman, World Spectators Samuel Weber, Institution and Interpretation: Expanded Edition Jeffrey S. Librett, The Rhetoric of Cultural Dialogue: Jews and Germans in the Epoch of Emancipation Ulrich Baer, Remnants of Song: Trauma and the Experience of Modernity in Charles Baudelaire and Paul Celan Samuel C. Wheeler III, Deconstruction as Analytic Philosophy David S. Ferris, Silent Urns: Romanticism, Hellenism, Modernity Rodolphe Gasché, Of Minimal Things: Studies on the Notion of Relation Sarah Winter, Freud and the Institution of Psychoanalytic Knowledge Samuel Weber, The Legend of Freud: Expanded Edition Aris Fioretos, ed., The Solid Letter: Readings of Friedrich Hölderlin J. Hillis Miller/Manuel Asensi, Black Holes/J. Hillis Miller; or, Boustrophedonic Reading Miryam Sas, Fault Lines: Cultural Memory and Japanese Surrealism Peter Schwenger, Fantasm and Fiction: On Textual Envisioning Didier Maleuvre, Museum Memories: History, Technology, Art Jacques Derrida, Monolingualism of the Other; or, The Prosthesis of Origin Andrew Baruch Wachtel, Making a Nation, Breaking a Nation: Literature and Cultural Politics in Yugoslavia Niklas Luhmann, Love as Passion: The Codification of Intimacy Mieke Bal, ed., The Practice of Cultural Analysis: Exposing Interdisciplinary Interpretation Jacques Derrida and Gianni Vattimo, eds., Religion