Regulating Death: Capital Punishment and the Late Liberal State (original) (raw)

2001, The Yale Law Journal

Regulating Death prosecutors whose zeal outstripped their fidelity to the law. 1 2 Shortly thereafter, the U.S. Department of Justice released another study indicating significant racial and geographical disparities in the federal death penalty system. 3 The cumulative effect of these and other developments was registered in a Washington Post-ABC poll conducted in April of 2001. Leaving aside what has come to be known as the "McVeigh exception," " this survey indicated that overall support for capital punishment has fallen from 80% to 63% since 1994, and that nearly half of all Americans would now abandon executions altogether if given a reliable option of life imprisonment without parole. 15 On the basis of such evidence, it is tempting to predict, as Robert Jay Lifton and Greg Mitchell recently did, that "[b]efore long, the death penalty apparatus in our country will collapse under its own moral, psychological, and eventually political weight." 16 That prognostication, though, may be wishful thinking. If support for capital punishment has waned in recent years, this is not so much because new abolitionist arguments have been articulated and widely accepted, but because publicity has recently been lavished upon individualized stories of capital defendants represented by sleeping, intoxicated, or disbarred attorneys, of persons on death row proven innocent by undergraduate journalism students at Northwestern University, and of exonerations of the condemned on the basis of DNA testing. 17 Woven together, these stories have loosened the grip of attorney had slept through a significant portion of the initial proceeding). 18. Gross & Ellsworth, supra note 15, at 53.