It's late Saturday night. Another execution is scheduled for next week, and the machinery of death is humming through my fax. And, despite the qualms, despite the queasiness I still feel every time an execution is carried out in my jurisdiction, I tinker away. I do it because I have taken an oath. But there's more. I do it because I believe that society is entitled to take the life of those who have shown utter contempt for the lives of others. And because I hear the tortured voices of the victims crying out to me for vindication.
Judge Kozinski hears the tortured voices of the victims crying out for vindication, so he continues to tinker with the machinery of death. But one hears the voices of murder victims only in their silence. Families of victims may make victim impact statements in the sentencing phase of capital trials2 and may persuade prosecutors to follow their sentencing recommendations when determining whether to seek a death sentence.3 But the absent victims cannot speak for themselves, only through other actors such as their families and judges.
"A Declaration of Life"4 attempts to ensure that the justice system will understand the victim's wishes and not rely on family members to understand and vocalize the victim's opposition to capital punishment. Signers of the Declaration request, "[S]hould I die as a result of a violent crime, . . . the person or persons found guilty of homicide for my killing not be subject to or put in jeopardy of the death penalty under any circumstances."5
The document presents a unique challenge to the justice system: a case where the victim's rights align with the defense instead of the prosecution. It raises fundamental questions of the purpose behind punishment, justifications for sentencing, and constitutional issues with capital sentencing. Part I of this Note discusses the history of A Declaration of Life, places it in context with the larger victims' rights movement, and analyzes issues that, while likely immaterial to the legal admissibility of the document, might affect its rhetorical strength and persuasiveness. Part II applies the main philosophical justifications for capital punishment-deterrence and retribution-to declarations of life.
The Declaration of Life addresses three actors within the criminal justice system: prosecutors considering whether to seek the death penalty, jurors determining whether to impose the sentence, and executives potentially granting clemency. Part III addresses the practical and legal concerns with use of the document by each of these actors. When exploring the sentencing phase of a capital trial, Part IV discusses the aggravation-mitigation framework used in post-Gregg6 death penalty statutes and explains why rationales for admitting victim impact statements do not apply to victim sentencing recommendations such as declarations of life.
This Note concludes that a declaration of life requests mercy, rather than informs justice. It should thus play an important role in clemency proceedings but should not be involved in earlier stages of the criminal justice process.
I. A DECLARATION OF LIFE
In 1994, the Cherish Life Circle, founded by Sister Camille D'Arienzo, a nun from New York, officially adopted A Declaration of Life in response to the New York legislature's anticipated reenacting of the death penalty, which it did in 1995.7 She describes the Declaration as a tool to present a "faith-based perspective" on the death penalty, a perspective "adhering to the sacredness of all life."8 At least 10,000 people worldwide have signed the document.9 The Declaration should be notarized and kept with other important documents,10 and many signers additionally carry wallet cards.11
No case has addressed the admissibility of declarations of life,12 although there are some suggestions that a recent murder victim signed one.13 Vik Kanwar notes that "the full ethical and constitutional implications of [declarations] have yet to be explored. …