No Longer Tinkering With the
Machinery of Death:
Proposals for Systemic Reform
"T"he penalty of death is qualitatively different from a sentence of
imprisonment, however long…. Because of that qualitative
difference, there is a corresponding difference in the need for
reliability in the determination that death is the appropriate
—Justice Potter Stewart, Woodson v. North Carolina (1976)
Historian Stuart Banner has observed that there has always been "a tension between the general and the particular, between the approval of death as a punishment and a strong reluctance to carry out the distasteful steps necessary to put that punishment into practice."1 He suggested that this tension led, among other things, to the abolition of public executions. In this book I have suggested that the tension persists and is managed—although not entirely resolved—through the various social psychological mechanisms and legal procedures discussed in the preceding chapters.
In the course of this discussion I often have referred generically to "the law" and "the system of capital punishment." At times, these references may have seemed to imply that the system functioned in uniform ways, perhaps even with a conscious or conspiratorial design. I intended to impute none of these qualities. Instead, I believe that over time these procedures and legal structures have evolved as a function of accumulated decisions made by numerous legislators, judges, and others who, because of their implicit support for the death penalty, have chosen, preferred, and approved policies and practices that they understood—usually at an intuitive level—ensured the viability of capital punishment. In some sense, of course, conscious intention is not essential to the process I have described; as long as decision makers assume that the system of death sentencing is likely to persist as part of the established legal order, many of them are likely to make decisions and support policies that implicitly facilitate its preservation.
Collectively, as I have suggested, those policies and practices operate to morally distance citizens, voters, and jurors from the otherwise impossibly