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Elisabeth Semel's Response
Response to "Punishment and Redemption" by Judith W. Kay
The third annual Charles S. McCoy Memorial Lecture on Religion, Ethics, and Public Life, April 10, 2006
Elisabeth Semel, Clinical Professor of Law, Director of Death Penalty Clinic,
Boalt School of Law, University of California, Berkeley
Although we had never met, as I read the footnotes in Murdering Myths,1 I recognized the names of friends and colleagues of many years as well as others whose work I know and admire. Not surprisingly, then, when Judith and I first exchanged e-mails about this program and my role as "respondent," I told her that if the attendees were expecting a debate, they would be sorely disappointed. A dialogue—certainly more in keeping with Judith's message—would have to suffice.
Judith has marked a challenging path from retributive to covenantal justice. As her respondent, I will suggest that the route is even more arduous than the one she charted. I will do so by juxtaposing her view with that of the lawyer who is responsible for representing clients accused of capital murder or who have been convicted and sentenced to death. In raising these concerns, I am not voicing any disagreement with Judith's premise that violence against others is the manifestation of a disconnection from one's own humanity nor with the final destination of restoring people to their own humanness and reawakening their responsiveness to others.2 Thirty years of representing clients accused and convicted of crime instructs me that Judith's premise and goal are correct. And, as I will discuss, lawyers who represent clients on death row are engaged, day-to-day, in the process of discovering the sources of our clients' disconnection, seeking to explain it, and helping our clients find a way back to themselves.
Judith gave you a glimpse of Jim Elledge's life history to illustrate her assertion that "[p]erpetrators are already trapped in tunnel vision, in which they are unable to see either their own humanity or that of their victims."3 As will become clear, I would not use the word "perpetrator" to describe any of my clients or any defendant. Still, Judith's explanation of how these men and women see themselves and others, and why they have that dehumanized perception is consonant with my experience.
Judith spoke first about how retribution is supposed to serve the victim and observed, correctly, that technically retribution is exacted at the behest and for the benefit of the State.4 She commented that victims' rights groups popularized the notion that capital punishment is therapeutic for surviving family members and that by the 1980's the public had adopted and was reflecting back this view.5
I am focusing my remarks on this popularized notion because in the past twenty years, the victims' rights movement has reshaped the criminal justice system.6 It has all but undone the presumption of innocence, all but shifted the burden of proof and privatized our public justice system—albeit using public funds. Its influence in capital cases has been profound.7 To the extent that one can use the word "fairness" in the same sentence as the words "death penalty," the victims' rights movement has undermined the constitutional guarantee of fundamental fairness for persons facing the ultimate punishment.
Judith begins Murdering Myths by observing, "Humans make sense of the world through stories."8 The role of a capital defense lawyer, especially in the penalty phase, is to make sense of the client's life—of how he got from there to here—by telling the client's story.9 When making the life or death decision, each juror is permitted to consider anything about the client's involvement in the crime or his character that would incline the juror to exercise mercy.10
Judith also wrote, "Without a story to provide context and meaning, a person's life might appear a series of inexplicable choices."11 With a story to provide context, the client's involvement in and responsibility for murder is explained and understood as more than the result of bad choices. One example of "telling the story" enables jurors to understand the phenomenon that Judith describes in her book: when a human being is not permitted to recover from hurt or injury, she may want to injure in return.12
The case in mitigation—the case for life—makes it possible for jurors to acknowledge that the man or woman seated next to defense counsel is not a "super predator," "monster," or a "psycho killer," but a human being whose life trajectory can be explained and whose life has meaning no matter how horrific the crime that he or she has committed.13 As a result of jurors' preconceptions about our clients, their deeply held beliefs about "choice"14 and, of course the gravity of the crime of which they have just convicted the defendant, developing and presenting the case for life is a fiercely challenging responsibility. However, as I will discuss, the presentation of victim impact evidence in the penalty phase has made that task immensely more difficult and has skewed the decision-making process.
The genesis of the victim's rights movement is in the women's movement.15 Feminists fought to change the way in which rape cases were handled by identifying the complaining witnesses as rape victims—later "survivors," another evolutionary stage of the victim's rights movement—altering the procedures for medical examinations and police interviews so that women were treated with dignity and sensitivity, and pushing through changes in the rules of evidence that, in the vast majority of cases, prevent defense counsel from inquiring into the sexual history of a woman who has accused a man of rape.16 From rape victims to victims of child molestation, the victims' rights movement rose to prominence, not coincidentally, during late 1970's and, particularly the 1980's, when the country was experiencing an increase in violent crime and the media was fueling fear, particularly in white communities.17 There was, during the same period, enormous, legitimate frustration and anger on the part of crime victims who felt not only excluded from the criminal justice process but mistreated by it.18 In this climate, a movement that not only gave voice to victims, but aimed to give them a place in the courtroom, had ample political traction.19
In 1976, when the Supreme Court reinstated the death penalty, it held that there were but two constitutionally legitimate rationales for the continued imposition of capital punishment: retribution and deterrence.20 In 2002 and 2005, in its decisions ending the death penalty for individuals with mental retardation and those who were under 18 at the time of their crimes, the Court reaffirmed that these are the only two permissible goals of the death penalty under the Eighth Amendment.21 Of the two, the Court has expressed some ambivalence about the reliability of the deterrence theory.22 To the extent that retribution was on strong footing in 1976, the victims' rights movement has cemented its position.23 This, of course, is due in no small part to the political realignment of the Court and, for that matter, all branches of government.
Historically, we have gone from a system in which criminal acts were prosecuted privately—and therefore only the wealthy could obtain accountability -- to one in which crimes were viewed as acts against the collective, which is embodied in local, state and federal governments.24 Hence, in California, when someone is accused of a crime, the charge is filed in is in the name of "The People of the State of California."
When I became a public defender in 1975, the participants in a criminal case were the defendant, also known as the accused, the state, the witnesses, the judge and the jury. Among the witnesses, there were percipient, lay, expert, and complaining witnesses. In the 1970's, the terms that identified the participants in the criminal justice system were the narrative: the accused was someone charged with a crime; he was presumed innocent until the contrary had been proved beyond a reasonable doubt. The prosecutor put on his case through the testimony of witnesses, each of whom had personal or expert knowledge to offer. In rape cases, the woman who reported the rape was the complaining witness,25 sometimes referred to as the prosecutrix. In homicide cases, the individual who had been killed was the decedent. The word "victim" was not in the lexicon of the criminal justice system.
From the perspective of someone who was raped or whose loved one had been murdered, words like complaining witness and decedent deny both the truth of the crime and the suffering of the individual against whom it was committed. Over the past two decades, the vast majority of states have enacted constitutional amendments and/or legislation intended—as it is most often put—to balance the scales of justice for crime victims.26
However, as Justice Stevens wrote: "The premise that a criminal prosecution requires an even-handed balance between the State and the defendant is . . . incorrect. The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State."27 Our accusatorial system of justice was not constructed to view crime or punishment through the lens of the crime victim.28
From a constitutional perspective, there is no crime until a jury unanimously agrees that the prosecution has proved beyond a reasonable doubt that this defendant committed one, or the defendant, by a plea of guilty, admits its commission. Likewise, until a crime has been proved, there is no victim.
By merely altering the characterization of the participants, the nature of the process is transformed from accusatorial to inquisitional. If there is a victim in the courtroom at the defendant's first appearance when bail is set, there must have been a crime.29 If a crime took place, it must have been committed by the man in custody, whom everyone is now referring to as the perpetrator. And, these revisions of the legal vernacular are almost benign compared to the state constitutional and state and federal legislative changes that have occurred.30
Prosecutors recognized early on how the victims' rights mantra could be used to make drastic changes in criminal law and procedure that would increase their ability to obtain convictions and death sentences, but had little to do with meeting the needs of crime victims.31 For example, two California ballot initiatives—in 1982 and 1990— were passed under the victims' rights banner head that changed the rules of evidence in criminal cases, abolished the right to bail, deprived the state supreme court of the ability to interpret the state constitution in a way that was more protective of our rights than the federal constitution allowed, and eliminated the right of lawyers in criminal cases to question prospective jurors.32
In Alabama, for example, a member of the victim's family sits at counsel table next to the prosecutor during trial and is introduced by the prosecutor to the jury.33 The prosecutor is now seen as the representative of the victim, not the state, and to the extent there is any conflict, legislation ensures that crime victims are a third party in the proceedings with enforceable rights.34
To illustrate how we now have a system of publicly funded private justice that is especially retributive, consider that one of the most effective ways to win passage of a punitive crime bill is to name it after a crime victim or construct a campaign for its enactment that centers around a high profile case. Megan's Law, which put the faces and addresses of convicted sex offenders on the internet, 35 and California's Three Strikes Initiative, which was driven by the murder of Polly Klaas,36 are but two examples.
In 2000, federal legislation was drafted in response to the increasing number of wrongful convictions and the states' unwillingness to provide competent and adequately funded counsel in death penalty cases. It was called the Innocence Protection Act (IPA).37 As its name suggests, the original bill nothing to do with crime victims. In 2004, Congress passed the Justice for All Act.38 The power of the victims' rights lobby was such that remnants of the IPA could be approved only by folding them into crime victims' legislation,39 including the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis and Nila Lynn Crime Victims' Rights Act, which gives crime victims a broad range of rights in federal cases, such as the right to be heard at any proceeding involving the release, plea or sentencing of the defendant, the right to be free of unreasonable delays in the proceedings and the ability to challenge a deprivation of these rights by taking a writ to the appellate court.40 Congress approved $155 million for the implementation of this statute, including providing counsel for crime victims to ensure enforcement of these rights.41
The IPA was gutted so that not a penny of the money appropriated can be spent for the cost of representing men and women facing the death penalty and whatever money Congress did allocate to train lawyers must be shared with local district attorneys who already receive millions of dollars a year for training, investigation and prosecuting capital trials.42
The influence of the victims' rights movement in capital cases made its first appearance in 1987 with what is known as victim impact evidence. In two cases, Booth v. Maryland and South Carolina v Gathers,43 the U.S. Supreme Court rejected the proposition that evidence about the impact of a murder on the victims' family members should be admitted at the penalty phase of a capital trial. The reasons for excluding victim impact testimony were both straightforward and compelling: The victim is not on trial. The defendant is.44
The sentence of death must reflect an "'individualized determination'" of the defendant's "'personal responsibility and moral guilt'" and must be based upon factors that channel the jury's discretion "'so as to minimize the risk of wholly arbitrary and capricious action.'"45 Victim impact evidence is inevitably likely "to draw the jury's attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community."46
In 1991, in Payne v. Tennessee,47 the Supreme Court did an about-face and held that the federal constitution permitted the introduction of victim impact evidence. While the opinion, unlike Bush v. Gore,48 did not alter the outcome of a presidential election, it was highly political and controversial. Justice Scalia who was in the majority made it clear that the decision was intended to redress the anger and frustration of murder victims' families that had "found voice in a nationwide 'victims' rights' movement."49
Justice Marshall began his dissenting opinion in Payne by stating, "Power, not reason, is the new currency of this Court's decision making." 50 He pointed out that the only thing that had changed in four years was the personnel on the Court.51
Judith remarked that "the severest punishments are reserved for the most valuable victims."52 The introduction of victim impact evidence perpetuates this feature of the capital punishment system. The dissenting justices in Payne understood that victim impact evidence was likely to increase the discriminatory effect of the death penalty. Justice Stevens wrote:
Also incomprehensible is the argument that such a rule is required for the jury to take into account that each murder victim is a "unique" human being. . . The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. Evidence offered to prove such differences can only be intended to identify some victims as more worthy of protection than others. Such proof risks decisions based on the same invidious motives as a prosecutor's decision to seek the death penalty if a victim is white but to accept a plea bargain if the victim is black.53
Not only are blacks who kill whites more likely to receive the death penalty, anyone of any race who kills a white victim is more likely to be sentenced to death.54 Nationally, 50 percent of homicide victims are white.55 Since 1977, whites made up 80 percent of the victims in the 1000-plus cases in which defendants were executed.56 In Alabama, 65 percent of murder victims are African-American.57 In the executions that have occurred in that state since 1977, 81 percent of the victims were white.58
The last thing a prosecutor would do today is to malign the deceased. In this transformed system, no life has value like that of a murder victim. Photographs and videotapes of the decedent prior to his or her death, with the family and in a variety of settings are commonplace at the penalty phase along with the testimony of family members who describe in detail the gifted pianist, the promising student, the loving husband and father, memories of Christmases and vacations, and the devastation—lives derailed, children who became untethered, failed attempts at counseling, endless grief. Jurors look from the witness stand to the defendant.
There sits the defendant, convicted of a murder, perhaps several. Over the course of the guilt phase, the jurors who have been selected because they are willing to impose the death penalty,59 have come closer to violence than they ever thought they could. Even before they heard anything about the character of the victim or the devastation the murder has wrought on his family, they are enraged at the defendant. He has done the unimaginable, the unthinkable, and the inhuman.60
Since 1991, the California Supreme Court has decided about 50 appeals in which objections were raised to the nature and scope of the victim impact testimony presented at trial. Although it has acknowledged that there are constitutional limits to the admissibility of this evidence, the Court has yet to decide that the testimony prejudiced the fairness of the trial.
The member of the family of a murder victim who opposes the death penalty once said that among the many thoughts that keep her awake at night is the fear that because of her loss, she now shoulders responsibility for whether the defendant lives or dies. She does not want this responsibility. Nor should she have it.
1 Judith W. Kay, Murdering Myths (2005).
2 Judith W. Kay, Punishment and Redemption, McCoy Lecture at the Graduate Theological Union, Berkeley (April 10, 2006) at 2 (on file with author).
3 Id. at 10.
4 Id. at 3.
5 Id. at 3.
6 "[N]o movement in criminal law has been more powerful in the past twenty years than the 'victims' rights' movement, which has sought to enhance the place of the victim in the criminal trial process." Paul Gerwitz, Victims and Voyeurs at the Criminal Trial, 90 Nw. U. L. Rev. 863, 868 (1998). See also Paul J. Pfingst, et al., The Genie's Out of the Jar: The Development of Criminal Justice Policy in California, 33 McGeorge L. Rev. 717 (prosecutors' analysis of California's initiative process from the 1970's through the 1990's, concluding that "Californians revamped their criminal justice system to address their fears," id.).
7 As of 2003, thirty-three of the thirty-eight states with the death penalty, as well as the federal government and the military, permitted the introduction of victim impact evidence ("VIE") in death penalty trials. "Most jurisdictions have done so with little or no reasoned analysis as to why this type of evidence and argument should be admissible . . . [S]urprisingly few jurisdictions provide any substantive limits or procedural protections regulating the admission of VIE and argument." John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257, 267-68 (2003). "[T]he movement has changed dramatically the manner in which capital cases are investigated and prosecuted. Prosecutors may work directly with victims' families in deciding whether to seek the death penalty. Prosecutors may confer with the family in deciding whether to accept a plea bargain. And . . . the victim's family now has the ability through victim impact statements to let their own suffering influence the jury during the all-important sentencing phase." Susan Karamanian, Victims' Rights and the Death-Sentenced Inmate: Some Thoughts and Observations, 29 St. Mary's L.J. 1028, 1025 (1998).
8 Kay, supra note 1, at ix.
9 "Along with preparing to counter the prosecution's case for the death penalty, defense counsel must develop an affirmative case for sparing the defendant's life." Commentary to Guideline 1.1 of the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003 ed.) (internal citations omitted). "The first mechanism of moral disengagement that encourages jurors to overcome the prohibition against lethal violence is the dehumanization of the capital defendant. It is a virtual truism among capital defense attorneys that they must 'bring the defendant to life so that the jury will want to let him live.'" Craig Haney, Death By Design, 164 (2005) (original emphasis).
10 See generally Lockett v. Ohio, 438 U.S. 586, 605 (1978) ( "[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.") (original emphasis); Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)("We have held that a State cannot preclude the sentencer from considering 'any relevant mitigating evidence' that the defendant proffers in support of a sentence less than death . . . [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.").
11 Kay, supra note 1, at ix.
12 Id. at xix.
13 See Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 5 Santa Clara L. Rev 547, 560-61 (1995); Haney, Frameworks of Misunderstanding: Capital Punishment and the American Media, 27-44, in Death By Design, supra note 9 (analyzing how the media's presentation of "the most distorted and extreme possible versions of violence" makes the death penalty justifiable, id. at 44).
14 See Haney, The Social Context of Capital Murder, supra note 13 at 548-560; 592-593.
15 Lynne N. Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937, 949 and n.68 (1985) (citing Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 3 (1977)).
16 Henderson and Berger, supra note 15. See, e.g., Cal. Evid. Code § 782, the California rape shield law, enacted in 1974. The statute now applies to variety of sexual assault charges. It sets forth a series of procedural hurdles the accused must overcome "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness . . . ." Id. subsection (a). The defendant must file an affidavit that includes an offer of proof describing the proposed evidence and its relevance, and the witness is questioned out of the presence of the jury before the trial court rules on the admissibility of the evidence. Id.
17 See Haney, supra note 9, Frameworks of Misunderstanding: Capital Punishment and the American Media, 27-44. Fear-mongering by the media continued long after the crime rate began to decrease. See Walter L. Updegrave, You're Safer Than You Think, Money, 114-124 (June 1994) (analysis of 20 years of crime statistics showing that "blacks are two times as likely [as whites] to suffer a violent crime," but that white Americans who were least at risk were the most fearful based largely on misleading media coverage, id. at 117). The murder rate "hit a low in the mid-1980's, spiked in the late 1980's and early 1990's, and then tapered." Geoffrey A. Campbell, Putting a Crimp in Crime: Experts differ over reasons for falling rates of serious offenses, ABA Journal, 24 (May 1997) (citing Professor Franklin E. Zimring). In 1998, violent crime reached its lowest level since 1973, continuing a downward trend that began in 1994. Violent Crime Falls 7 Percent, To Lowest Level in Decades, N.Y. Times, Jul. 16, 1999, at A10.
18 The preamble to the Crime Victim's Justice Reform Act (Cal. Initiative Measure Proposition 115) reads, in pertinent part: "We the people of the State of California hereby find that the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system." Pfingst, supra note 6, at 731 and n.93. Senator Jon Kyl (AZ), co-sponsor with Senator Dianne Feinstein (CA) of the "Crime Victims' Rights Amendment" to the U.S. Constitution, has said that the victims' rights movement aims to see the rights of victims "'elevated to the same status'" as those of the accused. Victims' Ultimate Revenge, Legal Times, July 11, 1996, at 17 (quoting Sen. Jon Kyl). See also Booth v. Maryland, 482 U.S. 496, 520 (1987) (Scalia, J., dissenting).
19 Charles S. Lanier and Beau Breslin, Extinguishing the Victims' Payne or Acquiescing to the "Demon of Error": Confronting the Role of Victims in Capital Clemency Proceedings, in Wounds That Do Not Bind, 183, n.2 (James R. Acker and David R. Karp eds. 2006) (noting that "it was not until the U.S. Congress passed a series of laws—the Victim and Witness Protection Act of 1982, the Comprehensive Crime Control Act of 1984, and the Crime Control Act of 1990—that the movement gained significant momentum"). See also Henderson, supra note 15, at nn.948-49 (discussing "the politicization" of the "symbolic value of the victim" and n.70 observing that "[t]he forces of 'law and order' have been quite receptive to the lobbying by groups representing specific classes of victims"). Constitutional amendments and statutes enacted throughout the country can be found on a host of websites. See, e.g., Office for Victims of Crime (U.S. Department of Justice), http://www.ojp.usdoj.gov/ovc/ and Klaas Kids Foundation, http://www.klaaskids.org/vrights.htm.
20 See Gregg v. Georgia, 428 U.S. 153, 1983 (1976). In 1972, when the Supreme Court held that the death penalty was arbitrary in its application, Justice Marshall observed that deterrence was "[t]he most hotly contested issue regarding capital punishment . . . ." Furman v. Georgia, 408 U.S. 238, 345 (1972).
21 See Atkins v. Virginia, 536 U.S. 304, 319 (2002); Roper v. Simmons, 543 U.S. 551, 571 (2005).
22 See Gregg, 428 U.S. at 184-86; Atkins, 536 U.S. at 319-20; Simmons, 543 U.S. at 571-72.
23 See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (holding that the exclusion of victim impact evidence deprived "the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder"); 501 U.S. at 834 ("Booth's stunning ipse dixit, that a crime's unanticipated consequences must be deemed 'irrelevant' to the sentence conflicts with a public sense of justice keen enough that it has found voice in a nationwide 'victims' rights' movement.") (Scalia, J., concurring) (internal citation omitted); 501 U.S. at 867 (acknowledging that "[gi]ven the current popularity of capital punishment in a crime-ridden society, the political appeal of arguments that assume that increasing the severity of sentences is the best cure for the cancer of crime, and the political strength of the 'victims' rights' movement . . . [the] decision will be greeted with enthusiasm by a large number of concerned and thoughtful citizens") (Stevens, J., dissenting); see also Booth, 482 U.S. at 520 (Scalia, J., dissenting).
24 Henderson, supra note 15, at 937-942. See generally John H. Langbein, The Origins of Public Prosecution at Criminal Law, 17 Am. J. Legal Hist. 313 (1973).
25 See Cal. Evid. Code § 782 (b), which provides: "As used in this section, 'complaining witness' means the alleged victim of the crime charged, the prosecution of which is subject to this section."
26 See supra note 18, preamble to Proposition 115, and comments of Sen. Jon Kyl. See also supra note 19, websites posting information about constitutional amendments and statutes. In 2002, President Bush announced, "Our legal system properly protects the rights of the accused in the Constitution. But it does not provide similar protection for the rights of victims, and that must change." President Calls for Crime Victims' Rights Amendment, (Apr. 16, 2002), available at http://www.whitehouse.gov/news/releases/2002/04/20020416-1.html.
27 Payne, 501 U.S. at 860 (Stevens, J., dissenting). See also, James M. Dolliver, Victims' Rights Constitutional Amendment: A Bad Idea Whose Time Should Not Come, 34 Wayne L. Rev. 87, at n.7 (1987) ("The Bill of Rights was designed to protect personal liberties from government infringement, not to protect private individuals from each other.").
28 See supra note 27. See also Stephen J. Schulhofer, The Trouble with Trials: The Trouble with Us," 105 Yale L. J. 825, 840-841.
29 See Henderson, supra note 15 at 973 (noting that "if [t]he accused become 'criminals,' . . . as such, they may be removed from society for society's protection. The transformation of human beings into criminals justifies incarcerating them whether or not they have formally been found guilty of an offense. Moreover, if arrest is taken as sufficient evidence of guilt, the question of punishing the innocent never arises under this rationale").
30 See supra note 19 for websites posting federal and state statutory and constitutional victims' rights provisions.
31 "The rhetoric in support of Proposition 8 repeatedly emphasized the fear of future victimization and the handcuffing of law enforcement by the courts. By contrast, the text of Proposition 8 mentions victims in only 3 of its 21 substantive provisions." Henderson, supra note 15, at n.85. Proposition 115 was drafted by the California District Attorneys Association. "For prosecutors, it would greatly enhance their ability to convict criminals." Pfingst, supra note 6, at 732.
32 Respectively, the Victims' Bill of Rights, Cal. Initiative Measure Proposition 8 (approved June 8, 1982) (codified at Cal. Const. art. I, §§ 12, 28; Cal. Penal Code §§ 25, 667, 1191.1, 1192.7, 3043 (West Supp.1992); Cal. Welf. & Inst. Code §§ 1732.5, 1767, 6331 (West Supp.1992)) and the Crime Victims Justice Reform Act, Cal. Initiative Measure Proposition 115 (approved June 5, 1990) (codified at Cal. Const. art. I, §§ 14.1, 24, 29, 30; Cal. Civ. Proc. Code §§ 223, 223.5 (West Supp.1992); Cal. Evid. Code § 1203.1 (West Supp.1992); Cal. Penal Code §§ 189, 190.2, 190.41, 190.5, 206, 206.1, 859, 866, 871.6, 872, 954.1, 987.05, 1049.5, 1050.1, 1054, 1054.1, 1054.2, 1054.3, 1054.4, 1054.5, 1054.6, 1054.7, 1102.5, 1102.7, 1385.1, 1430, 1511 (West Supp.1992)). See Raven v. Deukmejian, 52 Cal.3d 336 (1990) (upholding the overall constitutionality of Proposition 115, but striking down the addition of article I, § 24 to the California Constitution).
33 Alabama Crime Victim's Court Attendance Act, § 15-14-50, et seq., Code of Alabama 1975.
34 See infra notes 40 & 41.
35 Following the kidnapping, rape and murder of seven year-old Megan Kanka, New Jersey enacted legislation that required public notification of information about individuals convicted of sex offenses, as distinct from state statutes that required only that such individuals register with law enforcement agencies. See N.J. Stat. Ann. §§ 2C:7-1 to 7-11 (West 1995 & Supp. 1997). See David S. DeMatteo, Welcome to Anytown, U.S.A.—Home of the Beautiful Scenery (And Convicted Sex Offender): Sex Offender Notification and Registration Laws in E.B. v. Vernierno, 43 Vill. L. Rev. 581, 582-83 (1998) (discussing the number of states that enacted sex offender registration and notification laws following New Jersey's lead). The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program was passed by Congress in 1994 and amended in 1996 by a bill titled "Megan's Law" (42 U.S.C. § 1407 (1994 & Supp. 1997) (providing that to be eligible for federal funds, a state must require its designated agencies to "release relevant information that is necessary to protect the public," id. subsections (e); (g)).
36 See Cal. Penal Code § 1170.12 (West Supp. 1995) (Cal. Initiative Measure Proposition 184, approved November 8, 1994); Daniel M. Weintraub, 3 Strikes' Law Goes into Effect, L.A. Times, Mar. 8, 1994, at A1; Victor S. Sze, A Tale of Three Strikes: Slogan Triumphs Over Substance As Our Bumper-Sticker Mentality Comes Home to Roost, 28 Loy. L.A. L. Rev. 1047, 1051-57 (1995).
37 Originally introduced as S. 2078 and H.R. 4176. See History of the Innocence Protection Act available at http://www.thejusticeproject.org/national/ipa/history-of-the-innocence-act.html. See also, Sean Scully, Senators seek greater safeguards in capital cases, Washington Times, Jun. 8, 2000, at A6 (discussing provisions for federal grants to increase access of death row prisoners to DNA testing, requiring states to improve representation in capital cases at the risk of losing federal funding and increasing compensation for individuals who were wrongfully convicted).
38 President George W. Bush signed the Justice for All Act of 2004, H.R. 5107 (Pub.L. 108-405), into law on October 30, 2004.
39 Lily Henning, The White House's Capital Venture, Legal Times, Mar. 21, 2005 (noting that the IPA became '[a] lightning rod for criticism from prosecutors and victims' rights groups")(on file with author). Title IV of the Justice for All Act contains some of the provisions of the IPA.
40 18 U.S.C. § 3771; 42 U.S.C. §§ 10603d and 10603e.
41 42 U.S.C. § 10603d; see http://capwiz.com/jp/issues/bills/?bill=6448016.
42 42 U.S.C. §§ 14163 (c)(2) and 14163 (a).
43 482 U.S. 496 (1987); 490 U.S. 805 (1989).
44 See supra notes 27 & 28.
45 Booth, 482 U.S. at 502 (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)).
46 Payne, 501 U.S. at 846 (Stevens, J., dissenting). See also Franklin E. Zimring, The Contradictions of Capital Punishment, 55 (2003) ("The symbolic transformation of the death penalty trial into a private competition . . . [suggests that] the greater the suffering to be inflicted on the offender, the better the victim's loved ones should feel.").
47 See supra note 23.
48 531 U.S. 98 (2000).
49 Payne, 501 U.S. at 859 (Scalia, J., concurring).
50 Payne, 501 U.S. at 844 (Marshall, J. dissenting); see also Payne, 501 U.S. at 859 ("Today's majority has obviously been moved by an argument that has strong political appeal but no proper place in a reasoned judicial opinion.") (Stevens, J., dissenting).
51 501 U.S. at 844 (Marshall, J., dissenting).
52 Kay, supra note 2, at 5.
53 Payne, 501 U.S. at 866 (Stevens, J., dissenting).
54 Death Penalty Information Center, Race of Death Row Inmates Executed Since 1976, http://www.deathpenaltyinfo.org/article.php?scid=5&did=184 (last visited May 7, 2005). See also Glenn L. Pierce and Michael L. Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev 1 (2005) (analyzing racial, ethnic and geographic data in the imposition of California's death penalty during the 1990's).
55 See Death Penalty Information Center, Facts About the Death Penalty (April 27, 2006), http://www.deathpenaltyinfo.org/FactSheet.pdf. See also Amnesty International United States of America, Death By Discrimination: The Continuing Role of Race in Capital Cases, http://web.amnesty.org/library/index/engamr510462003 (Apr. 24, 2003) ("The population of the USA is approximately 75 per cent white and 12 per cent black. Since 1976, blacks have been six to seven times more likely to be murdered than whites, with the result that blacks and whites are the victims of murder in about equal numbers.").
56 Facts About the Death Penalty, supra note 55. See also http://www.deathpenaltyinfo.org/article.php?did=105&scid=5#resources (links to reports issued by federal and state entities and by public interest organizations).
57 ACLU, Broken Justice: The Death Penalty in Alabama, 21 (Oct. 2005), available at http://www.aclualabama.org/WhatWeDo/BrokenJustice_report.pdf.
58 Id.
59 See Wainwright v. Witt, 469 U.S. 412 (1985). See also Haney, supra note 9, Death By Design, Tribunal Organized to Convict and Execute, 93-114; Preparing for the Death Penalty in Advance of Trial, 115-139.
60 "[T]he dehumanization of the defendant comes about in part because of the prolonged period during which the jury has been encouraged both to regard him as less than and person and to perceive him as little more than an autonomous agent of violence, one who lacks a social context, and very often, a traumatic history that may help to account for that violence." Haney, Death By Design, supra note 9, at 146.
Sign of the Times: The Cleveland Marbles and the Visual Cultures
