Blinded by the Death Penalty:
The Supreme Court and the Social Realities of
There have not been here only writers hungering for reality and
brilliant narrators whose "dazzling" verve carries off a man's head;
whatever the degree of guilt of the accused, there was also the
spectacle of a terror which threatens us all, that of being judged
by a power which wants to hear only the language it lends us…
—Roland Barthes, "Dominici, or the Triumph of Literature" (1972)
Historian Douglas Hay has written that the death penalty was once "the climactic emotional point of the criminal law—the moment of terror around which the system revolved."1 Although times have changed dramatically since 18th-century England, when some 200 crimes were punishable by death, this climactic emotional point still plays a central role in the administration of justice in our society. Moreover, our ambivalence about honestly and fully contemplating the "moment of terror" and everything that leads up to it often skews the way many of us talk and think about capital punishment, the way we study it, and the way our courts reason about it.
Perhaps because of a deep-seated moral and psychological ambivalence about capital punishment in our culture, many people—even some who are strongly in favor of the death penalty—find themselves saying one thing and doing another on this issue. Legal decision makers, especially, find that their support of the death penalty increasingly requires them to ignore a growing gap between many of their stated values and ideals and the patterns and practices by which they are routinely implemented in this area of law. The present chapter addresses some of these issues.
The death penalty presents American society with a mass of contradictions. In the contested terrain of capital punishment, citizens, voters, and jurors are pulled in different directions by a series of unresolved and often unnamed tensions. There is, of course, the core tension that characterizes any system of death sentencing—that, in order to demonstrate the degree to which we value human life, we take life. But there are others. Many citizens in the United States regard themselves as members of the world's most ad-