Agentic and conscientic decisions in law: Death and other cases

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1713-1735

  Underkuffler, Laura S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 0033411368     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (114)

1. See Kent Greenawalt, The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment, 27 WM. & MARY L. REV. 1011, 1047 (1987).
2. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
3. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
4. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
5. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
6. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
7. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
8. See, e.g., KENT GREENAWALT, LAW AND OBJECTIVITY (1992) [hereinafter GREENAWALT, LAW AND OBJECTIVITY]; KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995) [hereinafter GREENAWALT, PRIVATE CONSCIENCES]; KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988); Kent Greenawalt, Grounds for Political Judgment: The Status of Personal Experience and the Autonomy and Generality of Principles of Restraint, 30 SAN DIEGO L. REV. 647 (1993) [hereinafter Greenawalt, Grounds for Political Judgment]; Kent Greenawalt, supra note 1; Kent Greenawalt, On Public Reason, 69 CHI.-KENT L. REV. 669 (1994); Kent Greenawalt, Reason and Sympathetic Imagination, 3 EMORY L.J. 9 (1980) [hereinafter Greenawalt, Sympathetic Imagination]; Kent Greenawalt, Religious Liberty and Democratic Politics, 23 N. KY. L. REV. 629 (1996) [hereinafter Greenawalt, Religious Liberty].
9. Greenawalt defines "religious" bases for decision as those "connected to theistic belief or other belief about a realm of ultimate value beyond, or deeper than, ordinary human experience, or to forms of life or institutions understood to be religious, such as Buddhism or the Ethical Culture Society." GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 39.
10. As Greenawalt explains, although reasoned judgment plays an important part in what most people believe is religious, many people's religious convictions rest at least in part on elements "that are not fully subject to reasoned interpersonal evaluation." Id. at 87.
11. How readily we embrace the use of nonrational or "nonpublic" reasons will depend, in large part, on the individual's role in the lawmaking process. Greenawalt concludes that private citizens, in a civic capacity, should generally feel free to rely on private sources in both public discourse and private deliberations. Legislators should rely upon public reasons in public discourse, but may rely on private sources in the process of private decisionmaking. Judges "should strive hard to be guided by public reasons," and they may rely on personal sources of judgment (including religious beliefs) when public reasons provide no answer. See Greenawalt, Religious Liberty, supra note 2, at 637-41; see also GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 143-50 (describing circumstances under which judges may rely on personal moral convictions); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 210-22 (1981) (describing prosecutorial decisionmaking and claims of "extra legal" or moral right).
12. How readily we embrace the use of nonrational or "nonpublic" reasons will depend, in large part, on the individual's role in the lawmaking process. Greenawalt concludes that private citizens, in a civic capacity, should generally feel free to rely on private sources in both public discourse and private deliberations. Legislators should rely upon public reasons in public discourse, but may rely on private sources in the process of private decisionmaking. Judges "should strive hard to be guided by public reasons," and they may rely on personal sources of judgment (including religious beliefs) when public reasons provide no answer. See Greenawalt, Religious Liberty, supra note 2, at 637-41; see also GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 143-50 (describing circumstances under which judges may rely on personal moral convictions); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 210-22 (1981) (describing prosecutorial decisionmaking and claims of "extra legal" or moral right).
13. How readily we embrace the use of nonrational or "nonpublic" reasons will depend, in large part, on the individual's role in the lawmaking process. Greenawalt concludes that private citizens, in a civic capacity, should generally feel free to rely on private sources in both public discourse and private deliberations. Legislators should rely upon public reasons in public discourse, but may rely on private sources in the process of private decisionmaking. Judges "should strive hard to be guided by public reasons," and they may rely on personal sources of judgment (including religious beliefs) when public reasons provide no answer. See Greenawalt, Religious Liberty, supra note 2, at 637-41; see also GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 143-50 (describing circumstances under which judges may rely on personal moral convictions); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 210-22 (1981) (describing prosecutorial decisionmaking and claims of "extra legal" or moral right).
14. Kent Greenawalt, Interpretation and Judgment, 9 YALE J.L. & HUMAN. 415, 422-23 (1997). As Robert Cover has written, "[j]udges deal pain and death." Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1609 (1986).
15. Kent Greenawalt, Interpretation and Judgment, 9 YALE J.L. & HUMAN. 415, 422-23 (1997). As Robert Cover has written, "[j]udges deal pain and death." Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1609 (1986).
16. See KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 63 (1987) (discussing how traditional social contract theory "tries to answer . . . how a government can justly have coercive powers over free individuals . . . . This consent . . . involves acquiescence in actions of the government that are within the sphere of the authority conferred").
17. See GREENAWALT, LAW AND OBJECTIVITY, supra note 2, at 169 (stating that although we must sometimes deviate from existing community standards, "especially when existing standards are believed to offend higher moral principles," "[discrepancies between law and dominant cultural morality are sources of tension and resentment" and tend "to threaten the effective functioning of legal norms"); Kent Greenawalt, Legal Enforcement of Morality, 85 J. CRIM. L. & CRIMINOLOGY 710, 711-12 (arguing that principles that guide legal regulation must include societally determined moral judgments).
18. See GREENAWALT, LAW AND OBJECTIVITY, supra note 2, at 169 (stating that although we must sometimes deviate from existing community standards, "especially when existing standards are believed to offend higher moral principles," "[discrepancies between law and dominant cultural morality are sources of tension and resentment" and tend "to threaten the effective functioning of legal norms"); Kent Greenawalt, Legal Enforcement of Morality, 85 J. CRIM. L. & CRIMINOLOGY 710, 711-12 (arguing that principles that guide legal regulation must include societally determined moral judgments).
19. See GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 28.
20. See id. at 37.
21. Greenawalt, Sympathetic Imagination, supra note 2, at 10.
22. Id. at 13.
23. Id. at 14.
24. See id.
25. Id.
26. See id. at 14-15.
27. Greenawalt, supra note 5, at 187.
28. For instance, whether a candidate for naturalization is of "good moral character," whether a criminal defendant acted "reasonably," and whether a punishment is "cruel and unusual" are questions that few would argue can be determined "from the corpus of law itself, even if that corpus is taken to include the various principles and theories that help explain it." GREENAWALT, LAW AND OBJECTIVITY, supra note 2, at 188-90.
29. See id. at 190.
30. In such cases, the law may articulate no relevant values, or those values that are articulated may conflict. See id. at 214-15. In an article that is most powerful and disturbing to our moral complacency, Greenawalt argues that legal questions founded on the moral status of animals and the environment present challenges such as these to the conventional, "explicitly consensual" model of lawmaking. For instance, "[t]he uniqueness of some human capacities and the superiority of others hardly seems adequate to justify according no moral significance to the interests of other animals." Greenawalt, supra note 1, at 1027. And "[u]nless one puts the justification in terms of psychological health or in terms of a needed corrective to present human ignorance of future possibilities, the claim that people should respect nature in its own right and should try to preserve species is not one that can be grounded successfully in rational argument." Id. at 1039. In these cases, "[p]eople have radically different reactions to what humans owe to nature in a larger sense, and neither analogies to ordinary moral constraints nor other forms of rational analysis provide much assistance in settling the issue." Id. Individuals are left, instead, to sources such as "visions that concern the 'ultimate meaning' of human life and the place of mankind in the universe." Id. at 1041; see also GREENAWALT, LAWAND OBJECTIVITY, supra note 2, at 181 (stating that there may be "sound criteria of correctness that are neither purely objective nor wholly culture dependent, but which reach beyond what common reason can discover").
31. See Greenawalt, supra note 1, at 1049, 1051; see also Kent Greenawalt, Natural Law and Political Choice: The General Justification Defense - Criteria for Political Action and the Duty to Obey the Law, 36 CATH. U. L. REV. 1, 35 (1986) ("[T]here are many fundamental questions of morality that are critical for the appropriate boundaries of legal protection for which rational secular morality cannot provide any single persuasive answer . . . . [In such a case] every citizen must resolve [the question] on the basis of some nonrational judgment, a judgment that is not irrational or against reason, but which goes beyond what rationality can establish.") (footnote omitted).
32. For instance, Greenawalt concludes that those who are charged with the enforcement of law should use consensually established principles and rational arguments when those sources yield answers to the problems at hand; only when they do not are "personal," nonrational grounds a legitimate part of the decisionmaking process. See Greenawalt, Grounds for Political Judgment, supra note 2, at 669.
33. GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 36.
34. See, e.g., id. at 36 ("The inappropriateness of relying on . . . personalized judgments is most obvious for decisions within the law. Part of the ideal of the rule of law is uniform and nonarbitrary decision under legal standards.").
35. The core idea of conscience has been defined as "the idea of a capacity, commonly attributed to most human beings, to sense or immediately discern that what he or she has done, is doing, or is about to do (or not do) is wrong, bad, or worthy of disapproval." Thomas E. Hill, Jr., Four Conceptions of Conscience, in NOMOS XL: INTEGRITY and CONSCIENCE 13, 14 (Ian Shapiro & Robert Adams eds., 1998). Popular conceptions of conscience include those rooted in theological beliefs about human agency, those that see conscience as an unreflective response to societally instilled values, and those that see conscience as reflective decisionmaking that compares our proposed actions with our (independendy determined) set of moral values. See id. at 14-17.
36. Cf. STANLEY MILGRAM, OBEDIENCE TO AUTHORITY: AN EXPERIMENTAL VIEW 132-33 (1974) (contrasting agentic and autonomous decisionmaking in social organizations).
37. See GREENAWALT, PRIVATE CONSCIENCES, supra note 2, at 142.
38. Saffle v. Parks, 494 U.S. 484, 512 n.13 (1990) (quoted by Brennan, J., dissenting).
39. In Parks' case, the Supreme Court did not reach the merits of his claim, holding that habeas relief was barred by Teague v. Lane, 489 U.S. 288 (1989). See Saffle, 494 U.S. at 487-95.
40. See, e.g., Zant v. Stephens, 462 U.S. 862, 877 (1983) (stating that the state sentencing scheme "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder") (footnote omitted).
41. See Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
42. See, e.g., Proffitt v. Georgia, 428 U.S. 242 (1976).
43. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976).
44. See, e.g., Jurek v. Texas, 428 U.S. 262 (1976).
45. Stephen P. Garvey, "As the Gentle Rain From Heaven": Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 997 (1996).
46. McCleskey v. Kemp, 481 U.S. 279, 305 (1987).
47. Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (plurality opinion).
48. Adams v. Texas, 448 U.S. 38, 46 (1980).
49. Gregg v. Georgia, 428 U.S. 153, 198 (1976) (opinion of Stewart, Powell & Stevens, JJJ.) (quoting Coley v. State, 204 S.E.2d 612, 615 (Ga. 1974)).
50. Jurek v. Texas, 428 U.S. 262, 274 (1976) (opinion of Stewart, Powell & Stevens, JJJ.).
51. See, e.g., Tuilaepa v. California, 512 U.S. 967, 973 (1994).
52. See Gregg, 428 U.S. at 192 (opinion of Stewart, Powell & Stevens, JJJ.).
53. The process to be used by the sentencer has been described as the application of "'reasoned judgment . . . in light of the totality of the circumstances present.'" Barclay v. Florida, 463 U.S. 939, 963 (1983) (Stevens, J., concurring) (quoting Elledge v. State, 346 So. 2d 998, 1003 (Fla. 1977)).
54. Occasionally, the Court lapses into articulations that are potentially inconsistent with this role; for instance, in discussing the death-eligibility decision, the Court has stated that "[i]t is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing." Barclay, 463 U.S. at 950 (plurality opinion) (emphasis added). If this statement anticipates that the decisionmaker will consult community moral standards for guidance, it is compatible with an agentic role. If it anticipates that the decisionmaker will consult personal moral standards, it is not.
55. See Tuilaepa, 512 U.S. at 974.
56. McCleskey v. Kemp, 481 U.S. 279, 306 (1987). But cf. Buchanan v. Angelone, 118 S. Ct. 757, 761 (1998) ("[T]he State may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.").
57. See Buchanan, 118 S. Ct. at 761; Hitchcock v. Dugger, 481 U.S. 393, 394 (1991).
58. See, e.g., Turner v. Murray, 476 U.S. 28, 34 (1986) (opinion of White, Blackmun, Stevens & O'Connor, JJJ.); Spaziano v. Florida, 468 U.S. 447, 489 (1984) (Stevens, J., concurring in part and dissenting in part).
59. Spaziano, 468 U.S. at 460. Because of this Eighth Amendment requirement, socalled "mandatory statutes" - under which all defendants guilty of aggravated murder are condemned to death - are unconstitutional. See Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion).
60. Booth v. Maryland, 482 U.S. 496, 504 (1987) (quoting Woodson, 428 U.S. at 304 (plurality opinion)).
61. Id.; see also Enmund v. Florida, 458 U.S. 782, 800 (1982) (stating that decision to execute a criminal defendant depends upon the "moral guilt" of the accused). Members of the Court have occasionally objected to this focus. However, they have generally argued that moral guilt should be considered with other factors, not that moral guilt is irrelevant to the selection decision. See, e.g., Booth, 482 U.S. at 520 (Scalia, J., dissenting) ("[T] he principle upon which the Court's opinion rests - that the imposition of capital punishment is to be determined solely on the basis of moral guilt - does not exist, neither in the text of the Constitution, nor in the historic practices of our society, nor even in the opinions of this Court . . . . [T]he human suffering the defendant has inflicted" should be considered, as well.) (emphasis added).
62. Spaziano, 468 U.S. at 469 (Stevens, J., concurring in part and dissenting in part) (footnote omitted); see also Gregg v. Georgia, 428 U.S. 153, 183 (1976) (opinion of Stewart, Powell & Stevens, JJJ.) ("[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct.").
63. Spaziano, 468 U.S. at 481 (Stevens, J., concurring in part and dissenting in part). Cf. Saffle v. Parks, 494 U.S. 484, 506 (Brennan, J., dissenting) ("The decision whether to impose the death penalty represents a moral judgment about the defendant's culpability, not a factual finding.").
64. Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., dissenting).
65. McCleskey v. Kemp, 481 U.S. 279, 336 (1987) (Brennan, J., dissenting) (emphasis added); see also Saffle, 494 U.S. at 492-93 (appropriateness of the death penalty is "'a moral inquiry into the culpability of the defendant'") (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)) .
66. McCleskey, 481 U.S. at 337 (Brennan, J., dissenting) (emphasis added).
67. Payne v. Tennessee, 501 U.S. 808, 838 (1991) (Souter, J., concurring) (emphasis added).
68. Saffle, 494 U.S. at 495 (emphasis added).
69. Booth v. Maryland, 482 U.S. 496, 504 (1987) (quoting Witherspoon v. Illinois, 391 U.S. 510, 519 (1968)) (emphasis added).
70. See Garvey, supra note 35, at 1003 n.56 ("Capital sentencing juries are said to represent the 'conscience of the community.' However, they 'represent' the community only because they are members of the community, not because they discern and then apply community standards."); see also McGautha v. California, 402 U.S. 183, 302 (1971) (Brennan, J., dissenting) ("[U]nder California law it is error to charge that the jury's verdict should express the conscience of the community; the jury should be told, instead, that the verdict must 'express the individual conscience of each juror.'") (quoting People v. Harrison, 381 P. 2d 665, 671 (Cal. 1963)); Stanton D. Krauss, Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing, 64 IND. L.J. 617, 617-18 (1989).
71. Galdwell v. Mississippi, 472 U.S. 320, 328-29 (1985).
72. Id. at 329-30, 333 (quoting McGautha, 402 U.S. at 208 (1971)).
73. California v. Ramos, 463 U.S. 992, 1011 (1983).
74. Walton v. Arizona, 497 U.S. 639, 664-65, 666 (1990) (Scalia, J., concurring in part and concurring in the judgment) (footnote omitted).
75. See, e.g., Blystone v. Pennsylvania, 494 U.S. 299, 316 (1990) (Brennan, J., dissenting).
76. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 328 (1989). These efforts have been derided by Justice Scalia, who has written that under the Court's standard, the jury may decide without . . . guidance whether [the defendant] . . . "lacked the moral culpability to be sentenced to death," . . . "did not deserve to be sentenced to death," . . . or "was not sufficiently culpable to deserve the death penalty" . . . . The Court seeks to dignify this by calling it a process that calls for a "reasoned moral response" . . . , - but reason has nothing to do with it . . . . It is an unguided, emotional "moral response" that the Court demands be allowed . . . Id. at 359 (Scalia, J., concurring in part and dissenting in part).
77. See, e.g., Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell & Stevens, JJJ.) (stating that discretion in sentencing involves "the risk of wholly arbitrary and capricious action"); Furman v. Georgia, 408 U.S. 238, 255-57 (1972) (Douglas, J., concurring) (observing that discretionary capital sentencing systems may operate, in practice, in a manner that discriminates against racial minorities and other unpopular groups). As Justice Douglas has written, "'It is the poor, the sick, the ignorant, the powerless and the hated who are executed.' One searches our chronicles in vain for the execution of any member of the affluent strata of this society. The Leopolds and the Loebs are given prison terms, not death." Furman, 408 U.S. at 251-52 (Douglas, J., concurring) (quoting RAMSEY CLARK, CRIME IN AMERICA 335 (1970)) (footnote omitted). Occasionally the Court attempts to minimize these dangers, stating, for instance, that "the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice." Gregg, 428 U.S. at 203 (opinion of Stewart, Powell, & Stevens, JJJ.). The fact that such discretionary decisionmaking is limited to those who have been previously found (on other grounds) to be a part of the death-eligible class does not, however, make that arbitrariness less troubling.
78. See, e.g., Walton v. Arizona, 497 U.S. 639, 662-74 (1990) (Scalia, J., concurring in part and concurring in the judgment); William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Ten Operative Factors in Ten Florida Death Penalty Cases, 15 AM. J. CRIM. L. 1, 6-7, 53-54 (1988); Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 859-66 (1992).
79. See, e.g., Walton v. Arizona, 497 U.S. 639, 662-74 (1990) (Scalia, J., concurring in part and concurring in the judgment); William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Ten Operative Factors in Ten Florida Death Penalty Cases, 15 AM. J. CRIM. L. 1, 6-7, 53-54 (1988); Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out? Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 859-66 (1992).
80. McGautha v. California, 402 U.S. 183, 204 (1971).
81. In McGautha, the Court upheld a state sentencing scheme which provided no standards for the sentencing authority at any stage of the proceeding. Id. at 196-208. Such a scheme would, of course, no longer pass Eighth Amendment muster. Under later Eighth Amendment jurisprudence, standards of some sort must define the death-eligible class and must govern a defendant's inclusion in that class; only the selection of a particular, death-eligible defendant for execution is a standardless (conscientic) decision. See Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion); Furman, 408 U.S. at 238 (per curiam).
82. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) (stating that discretion in capital sentencing is required in order to permit the sentencer to evaluate the unique factors involved in each case); Gregg, 428 U.S. at 222 (White, J., concurring) (claiming that mercy in capital cases involves "factors too intangible to write into a statute").
83. See supra notes 11-16 and accompanying text.
84. See supra notes 17-21 and accompanying text.
85. Woodson, 428 U.S. at 305 (plurality opinion).
86. Gregg, 428 U.S. at 187 (opinion of Stewart, Powell & Stevens, JJJ.).
87. As the Court has explained: The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases . . . . The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) (footnote omitted). Accordingly, "the sentencer, in all but the rarest kind of capital case, [may] not be . . . precluded from considering, as a mitigating factor, any aspect of the 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." Id. at 604 (footnotes omitted).
88. See, e.g., Lockett, 438 U.S. at 604-05 (plurality opinion); Woodson, 428 U.S. at 305 (plurality opinion).
89. See, e.g., DAVE GROSSMAN, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO KILL IN MODERN SOCIETY (1995).
90. See, e.g., Michael Leonard & Robert Robertson, "Interviews: The Prosecutors," in The Death Penalty: Personal Perspectives, 22 LOY. U. CHI. L.J. 1, 14, 15, 18 (1990) [hereinafter Death Penalty] (describing prosecutors' views that enforcement of the death penalty was simply a "part of their duties"; whether the death penalty statute was "an appropriate statute" was a question properly left to the legislature).
91. As one investigating scholar reported: Although each [juror] had participated in a relatively open-ended weighing process, juror after juror told me that the judge's instructions required them to impose death. [One said that] "[t]he instructions that we received . . . . didn't leave any room for choices." The forewoman of a jury that returned a death verdict told me almost defiantly that "we were trying desperately to find something in his favor." Another told me three times that the death penalty was a "requirement" in the case in which he was the foreman . . . . One juror reported, "I didn't want to do it, but I had to." Another explained, "You can feel sorry and sadness for what you have to do but you still have to do it. That is part of discipline." . . . These accounts confirm the hypothesis of social scientists that jurors who [have] imposed death would readily characterize the decision as one required by the applicable law in order to minimize their sense of personal responsibility. Joan W. Howarth, Deciding to Kill: Revealing the Gender in the Task Handed to Capital Jurors, 1994 WIS. L. REV. 1345, 1376-77 (footnotes omitted); see also Mark Costanzo & Sally Costanzo, The Death Penalty: Public Opinions, Legal Decisions, and Juror Perceptions, in VIOLENCE AND THE LAW 246, 264-65 (Mark Costanzo & Stuart Oskamp eds., 1994) (describing how many jurors who imposed death were able to discount their own sense of responsibility for the verdict). As one juror stated, "We weren't saying he'll get the death - we were just answering the questions. It was more comforting to focus on the questions." Id. at 265 (footnote omitted). Jurors also often discount the importance of their decisions on the theory that later appeals will prevent any actual executions. See, e.g., Geimer & Amsterdam, supra note 68, at 22 (quoting juror who voted for death: "I would have held out on the guilt phase if I had known he would be electrocuted. The word was he wouldn't be electrocuted."); Anthony Paduano & Clive A. Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 COLUM. HUM. RTS. L. REV. 211, 213 n.3 (1987) (citing studies that suggest that many jurors do not believe that any death sentence rendered will actually be carried out).
92. As one investigating scholar reported: Although each [juror] had participated in a relatively open-ended weighing process, juror after juror told me that the judge's instructions required them to impose death. [One said that] "[t]he instructions that we received . . . . didn't leave any room for choices." The forewoman of a jury that returned a death verdict told me almost defiantly that "we were trying desperately to find something in his favor." Another told me three times that the death penalty was a "requirement" in the case in which he was the foreman . . . . One juror reported, "I didn't want to do it, but I had to." Another explained, "You can feel sorry and sadness for what you have to do but you still have to do it. That is part of discipline." . . . These accounts confirm the hypothesis of social scientists that jurors who [have] imposed death would readily characterize the decision as one required by the applicable law in order to minimize their sense of personal responsibility. Joan W. Howarth, Deciding to Kill: Revealing the Gender in the Task Handed to Capital Jurors, 1994 WIS. L. REV. 1345, 1376-77 (footnotes omitted); see also Mark Costanzo & Sally Costanzo, The Death Penalty: Public Opinions, Legal Decisions, and Juror Perceptions, in VIOLENCE AND THE LAW 246, 264-65 (Mark Costanzo & Stuart Oskamp eds., 1994) (describing how many jurors who imposed death were able to discount their own sense of responsibility for the verdict). As one juror stated, "We weren't saying he'll get the death - we were just answering the questions. It was more comforting to focus on the questions." Id. at 265 (footnote omitted). Jurors also often discount the importance of their decisions on the theory that later appeals will prevent any actual executions. See, e.g., Geimer & Amsterdam, supra note 68, at 22 (quoting juror who voted for death: "I would have held out on the guilt phase if I had known he would be electrocuted. The word was he wouldn't be electrocuted."); Anthony Paduano & Clive A. Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 COLUM. HUM. RTS. L. REV. 211, 213 n.3 (1987) (citing studies that suggest that many jurors do not believe that any death sentence rendered will actually be carried out).
93. As one investigating scholar reported: Although each [juror] had participated in a relatively open-ended weighing process, juror after juror told me that the judge's instructions required them to impose death. [One said that] "[t]he instructions that we received . . . . didn't leave any room for choices." The forewoman of a jury that returned a death verdict told me almost defiantly that "we were trying desperately to find something in his favor." Another told me three times that the death penalty was a "requirement" in the case in which he was the foreman . . . . One juror reported, "I didn't want to do it, but I had to." Another explained, "You can feel sorry and sadness for what you have to do but you still have to do it. That is part of discipline." . . . These accounts confirm the hypothesis of social scientists that jurors who [have] imposed death would readily characterize the decision as one required by the applicable law in order to minimize their sense of personal responsibility. Joan W. Howarth, Deciding to Kill: Revealing the Gender in the Task Handed to Capital Jurors, 1994 WIS. L. REV. 1345, 1376-77 (footnotes omitted); see also Mark Costanzo & Sally Costanzo, The Death Penalty: Public Opinions, Legal Decisions, and Juror Perceptions, in VIOLENCE AND THE LAW 246, 264-65 (Mark Costanzo & Stuart Oskamp eds., 1994) (describing how many jurors who imposed death were able to discount their own sense of responsibility for the verdict). As one juror stated, "We weren't saying he'll get the death - we were just answering the questions. It was more comforting to focus on the questions." Id. at 265 (footnote omitted). Jurors also often discount the importance of their decisions on the theory that later appeals will prevent any actual executions. See, e.g., Geimer & Amsterdam, supra note 68, at 22 (quoting juror who voted for death: "I would have held out on the guilt phase if I had known he would be electrocuted. The word was he wouldn't be electrocuted."); Anthony Paduano & Clive A. Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 COLUM. HUM. RTS. L. REV. 211, 213 n.3 (1987) (citing studies that suggest that many jurors do not believe that any death sentence rendered will actually be carried out).
94. See, e.g., Seth Kaberon, "Interviews: Judges," in Death Penalty, supra note 79, at 34, 36, 38 (citing statements by judges that death cases are determined by the evidence and that the judge "[doesn't] have any control over the evidence," and "as a judge [is] sworn to uphold the law, . . . [he] must impose death in the proper circumstances").
95. See, e.g., Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7, 17 (1992) (reporting attitudes of state governors that executions are "the moral responsibility of Supreme Court justices"); see also HELEN PREJEAN, DEAD MAN WALKING: AN EYEWITNESS ACCOUNT OF THE DEATH PENALTY IN THE UNITED STATES 169 (1993) (discussing statement by a member of the state pardon board that members of the board "hadn't made the law and . . . were not personally responsible for this man, or any man, dying in the electric chair"). 83 As one corrections official explained: I look at it this way. I've made peace with myself on this thing by knowing that the fellow that's being executed has had every chance of appeal. He's had his trials; the number of appeals the guy has had - the United States Supreme Court three times, Eighth Circuit three times, the local court of appeals three or four times. When you know that the case has been scrutinized that closely, then it makes you feel much easier. I believe in the laws of our country. STEPHEN TROMBLEY, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 113 (1992) (interview with Bill Armontrout, former warden of the Missouri State Penitentiary). As Trombly writes succinctly in the forward to his book, "All the principal real-life characters of this book have one thing in common: [t]hey have taken human life." Id. at viii.
96. See, e.g., Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7, 17 (1992) (reporting attitudes of state governors that executions are "the moral responsibility of Supreme Court justices"); see also HELEN PREJEAN, DEAD MAN WALKING: AN EYEWITNESS ACCOUNT OF THE DEATH PENALTY IN THE UNITED STATES 169 (1993) (discussing statement by a member of the state pardon board that members of the board "hadn't made the law and . . . were not personally responsible for this man, or any man, dying in the electric chair"). 83 As one corrections official explained: I look at it this way. I've made peace with myself on this thing by knowing that the fellow that's being executed has had every chance of appeal. He's had his trials; the number of appeals the guy has had - the United States Supreme Court three times, Eighth Circuit three times, the local court of appeals three or four times. When you know that the case has been scrutinized that closely, then it makes you feel much easier. I believe in the laws of our country. STEPHEN TROMBLEY, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 113 (1992) (interview with Bill Armontrout, former warden of the Missouri State Penitentiary). As Trombly writes succinctly in the forward to his book, "All the principal real-life characters of this book have one thing in common: [t]hey have taken human life." Id. at viii.
97. See, e.g., Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s, 20 FLA. ST. U. L. REV. 7, 17 (1992) (reporting attitudes of state governors that executions are "the moral responsibility of Supreme Court justices"); see also HELEN PREJEAN, DEAD MAN WALKING: AN EYEWITNESS ACCOUNT OF THE DEATH PENALTY IN THE UNITED STATES 169 (1993) (discussing statement by a member of the state pardon board that members of the board "hadn't made the law and . . . were not personally responsible for this man, or any man, dying in the electric chair"). 83 As one corrections official explained: I look at it this way. I've made peace with myself on this thing by knowing that the fellow that's being executed has had every chance of appeal. He's had his trials; the number of appeals the guy has had - the United States Supreme Court three times, Eighth Circuit three times, the local court of appeals three or four times. When you know that the case has been scrutinized that closely, then it makes you feel much easier. I believe in the laws of our country. STEPHEN TROMBLEY, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 113 (1992) (interview with Bill Armontrout, former warden of the Missouri State Penitentiary). As Trombly writes succinctly in the forward to his book, "All the principal real-life characters of this book have one thing in common: [t]hey have taken human life." Id. at viii.
98. Victoria J. Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 VAND. L. REV. 311, 365 (1996).
99. See Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 435 (1995) ("The diffusion of moral responsibility that occurs when a decision is perceived (correctly or not) to be divided among a number of participants . . . affects all participants in the decisionmaking process, which in the capital context includes everyone from law enforcement agents to the actual executioners."). The extent to which death penalty actors actually succeed in this "distancing" is questionable. Studies of those who have served on capital juries have found that years later, many exhibit remorse, sorrow, nightmares, insomnia, and posttraumatic stress disorder. See Costanzo & Costanzo, supra note 80, at 268-69; Geimer & Amsterdam, supra note 68, at 35, 36, 46. One corrections official described his response to the supervision of an execution in the following terms: After it's all over, you feel like you want to go wallow in mud. Because although you didn't do it personally and even though you don't want to be perceived a total liberal or soft on crime, which everybody seems to think you are if you even say you believe there is another option, you feel like you sort of degraded yourself, and you feel sorry for the people who had to actually carry out the execution. At the same time you have concern and compassion for the victims of violent crime, but nobody said we had to like to kill people. There is nothing in the law says that you have to like killing somebody. IAN GRAY & MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME: AMERICANS SPEAK OUT AGAINST THE DEATH PENALTY 115 (1989) (interview with William Leeke, retired head of the South Carolina Department of Corrections).
100. See Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 435 (1995) ("The diffusion of moral responsibility that occurs when a decision is perceived (correctly or not) to be divided among a number of participants . . . affects all participants in the decisionmaking process, which in the capital context includes everyone from law enforcement agents to the actual executioners."). The extent to which death penalty actors actually succeed in this "distancing" is questionable. Studies of those who have served on capital juries have found that years later, many exhibit remorse, sorrow, nightmares, insomnia, and posttraumatic stress disorder. See Costanzo & Costanzo, supra note 80, at 268-69; Geimer & Amsterdam, supra note 68, at 35, 36, 46. One corrections official described his response to the supervision of an execution in the following terms: After it's all over, you feel like you want to go wallow in mud. Because although you didn't do it personally and even though you don't want to be perceived a total liberal or soft on crime, which everybody seems to think you are if you even say you believe there is another option, you feel like you sort of degraded yourself, and you feel sorry for the people who had to actually carry out the execution. At the same time you have concern and compassion for the victims of violent crime, but nobody said we had to like to kill people. There is nothing in the law says that you have to like killing somebody. IAN GRAY & MOIRA STANLEY, A PUNISHMENT IN SEARCH OF A CRIME: AMERICANS SPEAK OUT AGAINST THE DEATH PENALTY 115 (1989) (interview with William Leeke, retired head of the South Carolina Department of Corrections).
101. See Robert M. Bloom, American Death Penalty Opinion, 1936-1986: A Critical Examination of the Gallup Polls, in THE DEATH PENALTY IN AMERICA: CURRENT RESEARCH 122, 137-39 (Robert M. Bohm ed., 1991); Robert M. Bohm et al., Knowledge and Death Penalty Opinion: A Panel Study, 21 J. CRIM. JUST. 29, 35 (1993).
102. See Robert M. Bloom, American Death Penalty Opinion, 1936-1986: A Critical Examination of the Gallup Polls, in THE DEATH PENALTY IN AMERICA: CURRENT RESEARCH 122, 137-39 (Robert M. Bohm ed., 1991); Robert M. Bohm et al., Knowledge and Death Penalty Opinion: A Panel Study, 21 J. CRIM. JUST. 29, 35 (1993).
103. Costanzo & Costanzo, supra note 80, at 269.
104. As the method of lethal injection used in North Carolina was recently described: Central Prison uses three people to carry out an execution by lethal injection. Each one operates a plunger connected to an intravenous tube. They inject a sedative, which puts the condemned person to sleep, and a lethal dose of Pavulon, a muscle relaxant that paralyzes the heart and lungs. Two tubes go to the inmate, one leads to a hidden bag. This way no one knows who injected the lethal dose. Joseph Neff, Killer's Bizarre Execution Requst Denied, RALEIGH NEWS & OBSERVER, Jan. 21, 1995, at A3; see also GRAY & STANLEY, supra note 85, at 23 (describing hanging arrangements in which "there are three men in a booth on the platform, each of whom cuts a string at the hangman's signal, [but] only one of [whom] . . . springs the trapdoor"); TROMBLEY, supra note 83, at 11, 74-75, 106 (describing the use of one blank by firing squads and dummy pulls as parts of lethal injection machines). The point of such systems is to leave uncertainty as to who killed, not only in the minds of spectators, but in the minds of executioners as well. As one former warden explained it, "You have two manual pulls, and one is a dummy pull. Both have got the same size spring on them, so the person pulling doesn't feel anything different.'" Id, at 106 (interview with Bill Armontrout, former warden of the Missouri State Penitentiary).
105. As Justice Brennan writes: Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident . . . . A prisoner remains a member of the human family . . . . As one 19th century proponent of punishing criminals by death declared, "When a man is hung, there is an end of our relations with him. His execution is a way of saying, You are not fit for this world, take your chances elsewhere.'" Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring) (quoting Stephen, Capital Punishments, 69 FRASER'S MAGAZINE 753, 763 (1864)). As Robert Cover noted, "Not even the facade of civility . . . can obscure the violence of a death sentence." Cover, supra note 6, at 1623.
106. See Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 393 (describing the "inevitably unsystematic, irreducibly personal moral element of the choice to administer the death penalty"); Robin West, Narrative, Responsibility and Death, 1 MD. J. CONTEMP. LEGAL ISSUES 161, 170 (1990); see also STANLEY MILGRAM, THE INDIVIDUAL IN A SOCIAL WORLD: ESSAYS AND EXPERIMENTS (1992) (describing how the willingness of subjects to administer electric shocks to supposed "victims" depended upon the breaking of psychological identification between the two).
107. See Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 393 (describing the "inevitably unsystematic, irreducibly personal moral element of the choice to administer the death penalty"); Robin West, Narrative, Responsibility and Death, 1 MD. J. CONTEMP. LEGAL ISSUES 161, 170 (1990); see also STANLEY MILGRAM, THE INDIVIDUAL IN A SOCIAL WORLD: ESSAYS AND EXPERIMENTS (1992) (describing how the willingness of subjects to administer electric shocks to supposed "victims" depended upon the breaking of psychological identification between the two).
108. See Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 393 (describing the "inevitably unsystematic, irreducibly personal moral element of the choice to administer the death penalty"); Robin West, Narrative, Responsibility and Death, 1 MD. J. CONTEMP. LEGAL ISSUES 161, 170 (1990); see also STANLEY MILGRAM, THE INDIVIDUAL IN A SOCIAL WORLD: ESSAYS AND EXPERIMENTS (1992) (describing how the willingness of subjects to administer electric shocks to supposed "victims" depended upon the breaking of psychological identification between the two).
109. In most usages, conscience only has meaning - indeed, moral agency only has meaning - in the context of the consideration of the self with others. See DANIEL MAGUIRE, THE MORAL CHOICE 379 (1978) (stating that conscience "is not a center of moral judgment which is atomistically cut off from other centers"; it "lives in dialogue and mirrors our social nature"); Elizabeth Kiss, Conscience and Moral Psychology: Reflections on Thomas Hill's "Four Conceptions of Conscience," in NOMOS XL: INTEGRITY AND CONSCIENCE, supra note 25, at 69, 72-73 (describing conscience as involving a "moral connection to," or an "emotional capacity to empathize with," others).
110. In most usages, conscience only has meaning - indeed, moral agency only has meaning - in the context of the consideration of the self with others. See DANIEL MAGUIRE, THE MORAL CHOICE 379 (1978) (stating that conscience "is not a center of moral judgment which is atomistically cut off from other centers"; it "lives in dialogue and mirrors our social nature"); Elizabeth Kiss, Conscience and Moral Psychology: Reflections on Thomas Hill's "Four Conceptions of Conscience," in NOMOS XL: INTEGRITY AND CONSCIENCE, supra note 25, at 69, 72-73 (describing conscience as involving a "moral connection to," or an "emotional capacity to empathize with," others).
111. See, e.g., Walton v. Arizona, 497 U.S. 639, 664 (1990) (Scalia, J., concurring in part and concurring in the judgment).
112. Compare Saffle v. Parks, 494 U.S. 484, 493 (1990) (stating that sentences of death should turn on "a reasoned moral response, . . . rather than an emotional one") (quoting California v. Brown, 479 U.S. 538, 545 (1987)), with id. at 513 (Brennan, J., dissenting) (stating that "sympathy," and the emotions it involves, are "important ingredient[s] in the Eighth Amendment's requirement of an individualized sentencing determination").
113. We ask these questions today when confronting the enforcement of slave laws in our history. See ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 197-256 (1975) (exploring the refusal of most antebellum judges to face the moral dimensions of their actions in slavery cases).
114. As Professor Greenawalt has written in a slighdy different context,