Mitigation and the Capital Defendant Who Wants to Die: A Study in the Rhetoric of Autonomy and the Hidden Discourse of Collective Responsibility

Abstract

Two powerful adjudicatory ideals - preserving individual autonomy and promoting systemic reliability - collide most dramatically in cases where capital defendants join the prosecution in seeking a death verdict. Capital defendants do this by waiving the presentation of all mitigation evidence and affirmatively urging the jury to sentence them to death. This supposed expression of autonomy (presumably not unlike other constitutional waivers) impedes the sovereign's constitutional mandate to pursue reliable capital sentencing. Does autonomy trump reliability? This article examines the mitigation-waiver conundrum in a way never done before, and by doing so, aspires to illuminate how the rhetoric of autonomy suppresses destabilizing notions such as collective responsibility.

The flow of the argument begins with a diagnosis. Commentators and courts take a wrong analytical path in assuming that the mitigation-waiver conundrum actually involves a collision of what I call the Autonomy Ideal and the Reliability Ideal. When we consider other constitutional waivers - of the right to resist a search, of the right to remain silent, of the right to forego counsel, just to name a few - we see that they are acts of consent that elevate what would otherwise be unconstitutional into that which is constitutional. Contrary to what we blithely take to be true, autonomy actually plays little to no role in this moral magic of consent. But does this moral magic of consent operate in the same way with an Eighth Amendment waiver, which is what a mitigation-waiver is? While it seems that it ought not when we consider the issue of consenting to torture, we hesitate when we consider that a mitigation-waiver is a waiver of procedural rights, and thus seemingly not at all unlike other allowable constitutional waivers. Indeed, perhaps a mitigation-waiver doesn't in fact undermine the sovereign's pursuit of reliability at all, in as much as the Reliability Ideal is vindicated by a legitimate death eligibility determination (i.e., a verdict rendered in a procedurally fair trial).

This article shows why the Reliability Ideal cannot be vindicated by legitimizing the death-eligibility determination through an error-free trial. The act of consenting to a mitigation-waiver purports to elevate what would otherwise be an unconstitutional punishment into one that is not. But the power of consent - its Amoral magic, if you will - ought not extend that far, because the procedural rights that are waived exist precisely to resurrect executions from the realm of the cruel-and-unusual punishment. A mitigation-waiver, then, constitutes a form of consent to be punished in a way that violates society's self-imposed injunction against inflicting cruel-and-unusual punishment.

Still, this conclusion cannot resolve the mitigation-waiver conundrum, for it leaves intact the fundamental idea that a mitigation presentation is simply a capital defendant's opportunity to evoke mercy. Since mercy is an act of grace to which no one is entitled, it is at best personal to the individual; the sovereign has no moral or legal obligation to insist upon its consideration. The sovereign's obligation extends only to leaving the opportunity to seek mercy unimpeded.

Attacking the conventional wisdom of mitigation as a mercy-inducing device leads to the most provocative facet of the article. Mitigation, the article shows, necessarily absorbs destabilizing ideas of collective responsibility and collective guilt, ideas that demand we go beyond sloganeering about autonomy. Considerations of collective responsibility and guilt that an effective mitigation presentation evokes - considerations that provoke the essential question, are we as a society entitled to kill this particular defendant? - belong not to the individual defendant, but to the community that must resolve its own entitlement to impose death.