Rethinking the way jurors think(?) about death

Dahlia Lithwick — who continues to merit this fan site's label as "the rockingest Supreme Court columnist ever ever ever" — today has a this terrific Slate commentary on the death penalty entitled "The Crying Game: Should we decide capital punishment with our hearts or our heads?" 

Focused on the emotional testimony of the penalty phase of the Scott Peterson trial, the commentary laments that, in the Peterson trial, it is "clear that 'penalty phase' is simply a term of art for 'blatant emotional manipulation,' as both sides did everything in their power to persuade the jury to vote only with their hearts."  Dahlia does a wonderful job linking this reality to the modern doctrines and practices of capital punishment "in which the penalty phase no longer represents a contest between the defendant and the state but, rather, becomes a contest between the defendant and the victims' survivors."  And she concludes by contending that this reveals that "the only real justification for capital punishment is vengeance."

This provocative commentary raises a lot of great questions, and thus highlights for me an ironic quality of the Peterson trial.  Though I am always turned off by the media circus that surrounds high-profile trials, I am pleased that the effort to sentence Scott Peterson to death is getting a lot of media to explore many of the problematic realities of our modern capital punishment system.  (This USA Today article and last night's Nightline show, which is thoughtfully discussed by one of my favorite student bloggers here, are other good examples.)

Of course, for even fuller examination of these issues, the Fall 2004 issue of the Ohio State Journal of Criminal Law (detailed here) includes a terrific symposium all about Capital Juries.  All the articles are available on-line here; especially on point are pieces by Brandeis Professor Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury, and by Cornell Professors Theodore Eisenberg & Stephen Garvey, The Merciful Capital Juror, and by Vanderbilt Professor Nancy King, How Different Is Death? Jury Sentencing in Capital and Non-Capital Cases Compared.