Death and life were not Till man made up the whole.
-- W.B. Yeats(1)
Among the many issues polarizing Americans today, few can match capital punishment in terms of divisiveness. Unique in its severity, the death penalty likewise evokes a distinctive mix of deeply felt moral legal, and political views, resulting in a conspicuous absolutism among pro-and anti-death penalty camps. As recently noted by one commentator, the evocative cluster of issues is such that "[f]or most Americans, a position on capital punishment is an aspect of self-identification."(2)
With the per se constitutionality of the death penalty well-established by the U.S. Supreme Court, for more than twenty years public debate has centered on the moral and political ramifications of capital punishment, a debate dominated by groups seeking to persuade political leaders and the public-at-large of the righteousness of their respective positions. At one extreme, abolitionist groups such as Amnesty International and Campaign to End the Death Penalty have lamented the purported unfairness and immorality of the "ultimate sanction." At the other extreme, pro-death penalty groups such as the Washington Legal Foundation and Justice For All have vigorously defended the government's use of the death penalty, pointing to its purported retributive and deterrent value.
Of late, however, this battle has assumed a decidedly more personal cast. Over the past several years, the "voices" of murder victims themselves have entered the fray, weighing in on both sides of the issue. On the abolitionist side, members of Murder Victims Families for Reconciliation assert that "revenge is not the answer";(3) with equal pathos, other survivors' groups such as Parents of Murdered Children and Survive advocate use of the death penalty.(4) This article addresses the implications of an important recent outgrowth of this grassroots phenomenon: the "declaration of life," a document completed by death penalty opponents requesting that, should they be murdered, their convicted murderer "not be subject to or put in jeopardy of the death penalty under any circumstances, no matter how heinous their crime or how much I may have suffered."(5)
Since becoming available in the early 1990s, at least 10,000 individuals worldwide have signed declarations, including actors Susan Sarandon, Mike Farrell, and Martin Sheen; Sister Helen Prejean (portrayed in the Academy Award-winning film Dead Man Walking); former New York Governor Mario Cuomo; and U.S. Congresswoman Carolyn McCarthy, whose husband was killed during Colin Ferguson's murderous rampage on a Long Island Railroad train.(6) The declaration represents a highly personal prospective plea that the government not impose its ultimate sanction in the name of the decedent. As one declarant, the mother of a murdered seven-year-old girl, put it: "I don't honor my daughter's life by killing. Getting even is a pretty base response."(7)
Declarations themselves pose a unique challenge to the American criminal justice system, the traditional retributive aim of which has been to punish in the reciprocal name of the individual victim and society-at-large.(8) The fact that a declaration has been completed by a murder victim, of course, in no way negates the reality that the state's moral order and laws have been transgressed. At the same time, however, the victim's unequivocal and deliberately stated aversion to maximum punishment raises serious concerns over the moral legitimacy of the death penalty under such circumstances.
Traditionally, this breach--between public and private interests--has been straddled by the American prosecutor, a public official whose job it is to "seek justice."(9) This article explores what this notoriously open-ended mandate means in the face of declarations of life, and makes a case for prosecutorial deference to them. The article first examines the emerging declaration of life movement, and the apparent resistance among prosecutors to declarations. …