The Roberts Court and the death penalty code.

I.

The Lion in Winter (1) is a brilliant tale of the deception and treachery that accompanies King Henry II's effort to name the successor to his empire. In one scene, Princes (and brothers) Richard and Geoffrey wait in the dungeon for their father, Henry II, to arrive and kill them. Richard says to Geoffrey, "He's here. He'll get no satisfaction out of me. He isn't going to see me beg." (2) Incredulous and annoyed by Richard's priorities at the moment of their demise, Geoffrey says, "You chivalric fool. As if the way one fell down mattered." (3) To this, Richard responds, "When the fall is all there is, it matters." (4)

Punishment constitutes the fall in America's criminal law jurisprudence--when the government has used its coercive powers to bring the moral condemnation of the community upon an individual--and it matters. How we punish, whom we punish, and why we punish speaks a great deal about our political community: our dedication to justice, our political morality, and our sense of responsibility and accountability is a critical element of our humanity. (5) This is especially true of the death penalty. We also see it in the stories that emerge from a criminal justice system that inflicts this kind of punishment. Defense lawyers and abolitionists eloquently speak of the personal stories that accompany the death penalty. The stories are of courageous, often misunderstood, souls caught inside and battling against an unfair legal machinery that is both woefully insensitive to claims of mercy and humanity and ignorant of its own shortcomings. (6) Too often overlooked, too often marginalized, however, are the stories on the other side, the narrative that accompanies the all-too-real experiences of real people victimized, and communities subjugated, by violent crime. Theirs are stories of loss and suffering, of lives spent dwelling in the shadows of gunmen, and of hope for justice. They remind us of the responsibility of a political society and of political authority to carefully but surely bring its moral condemnation upon the wicked. The capital prosecutor, as the political authority's advocate, tells these stories, and in doing so, does more than simply wield a majoritarian sword against wickedness; he also gives voice to those now speechless, united in a silent accord. (7)

Whether one supports or opposes the death penalty, there can be little doubt that there remains great value in continuing our national dialogue about the fall that is condemnation through the criminal law and punishment by death. It matters.

It matters also because criminal and penal laws are institutional and moral manifestations of our need and efforts to control the people. We neglect--or in fact choose not--to talk about this anymore, this controlling the people; at least we do not talk about it in precisely those terms. It is easy to understand why. Our politics are to a significant extent rights-oriented, and many of the philosophical origins of our constitutional system are based in certain strands of early modern political thought, which posited that we entered civil society not so that Government could save our souls, but to protect our rights--our lives, our liberties, and our property. (8) We often forget, however, that an important corollary for such security is the preservation of a tolerable civil social order in which certain socially harmful conduct must be met by the reasoned condemnation of the political community. Our constitutional framework may have been conceived amidst the claims of the modern science of politics, but it did not abandon the understanding of the ancients, the understanding that tragedy is an omnipresent element of political life. Humans are weak, flawed, and often dangerous to their fellow citizens and to the state.

This understanding was not lost upon the Founding generation, which attempted to place the claims of liberty and the claims of authority at a proper equilibrium. Remember Madison's observation in Federalist #51, that "if men were angels, no government would be necessary." (9) Madison believed that before the Government can turn its attention to the critical task of controlling itself, the Government must first control the governed. (10) Madison and other leading Founders understood, as we must, the historical fragility of republics that did not properly balance order and liberty in constituting their political communities.

Controlling the people within a tolerable, reasoned order thus sometimes demands that the Government punish the people harshly for committing particularly serious crimes against the political community, including punishing offenders by death. (11) Congress has enacted, and various Presidents have signed into law, statutes that provide capital punishment for certain serious offenses. (12) The United States, via a personal opinion of the Attorney General, may only seek the death penalty in a federal civilian prosecution after a rigorous internal review of potential capital cases by the Department of Justice. In advising the Attorney General as to whether to authorize a capital prosecution, experienced prosecutors consider the facts and circumstances of the crime and the background of each individual defendant, including, among other things, the strength of the evidence and the weight of available aggravating and mitigating factors. (13) This process, in which the government actually invites the defense's participation and assistance, is designed to ensure fairness and uniformity in the government's application of the death penalty. The government that I represent, and the laws that I help to faithfully execute, recognize that capital punishment, along with appropriate protections for the accused, is necessary to the control of the governed and to the preservation of tolerable, ordered liberty in America.