Voices of the Victims: Capital Punishment and A Declaration of Life

It's late Saturday night. Another execution is scheduled for next week, and machinery of death is humming through my fax. And, despite qualms, despite queasiness I still feel every time an execution is carried out in my jurisdiction, I tinker away. I do it because I have taken an oath. But there's more. I do it because I believe that society is entitled to take life of those who have shown utter contempt for lives of others. And because I hear tortured voices of victims crying out to me for vindication. -Alex Kozinski1 Judge Kozinski hears tortured voices of victims crying out for vindication, so he continues to tinker with machinery of death. But one hears voices of murder victims only in their silence. Families of victims may make victim impact statements in sentencing phase of capital trials2 and may persuade prosecutors to follow their sentencing recommendations when determining whether to seek a death sentence.3 But absent victims cannot speak for themselves, only through other actors such as their families and judges. Declaration of Life4 attempts to ensure that justice system will understand victim's wishes and not rely on family members to understand and vocalize victim's opposition to capital punishment. Signers of Declaration request, [S]hould I die as a result of a violent crime, . . . person or persons found guilty of homicide for my killing not be subject to or put in jeopardy of death penalty under any circumstances.5 The document presents a unique challenge to justice system: a case where victim's rights align with defense instead of prosecution. It raises fundamental questions of purpose behind punishment, justifications for sentencing, and constitutional issues with capital sentencing. Part I of this Note discusses history of A Declaration of Life, places it in context with larger victims' rights movement, and analyzes issues that, while likely immaterial to legal admissibility of document, might affect its rhetorical strength and persuasiveness. Part II applies main philosophical justifications for capital punishment-deterrence and retribution-to declarations of life. The Declaration of Life addresses three actors within criminal justice system: prosecutors considering whether to seek death penalty, jurors determining whether to impose sentence, and executives potentially granting clemency. Part III addresses practical and legal concerns with use of document by each of these actors. When exploring sentencing phase of a capital trial, Part IV discusses aggravation-mitigation framework used in post-Gregg6 death penalty statutes and explains why rationales for admitting victim impact statements do not apply to victim sentencing recommendations such as declarations of life. This Note concludes that a declaration of life requests mercy, rather than informs justice. It should thus play an important role in clemency proceedings but should not be involved in earlier stages of criminal justice process. I. A DECLARATION OF LIFE In 1994, Cherish Life Circle, founded by Sister Camille D'Arienzo, a nun from New York, officially adopted A Declaration of Life in response to New York legislature's anticipated reenacting of death penalty, which it did in 1995.7 She describes Declaration as a tool to present a faith-based on death penalty, a perspective adhering to sacredness of all life.8 At least 10,000 people worldwide have signed document.9 The Declaration should be notarized and kept with other important documents,10 and many signers additionally carry wallet cards.11 No case has addressed admissibility of declarations of life,12 although there are some suggestions that a recent murder victim signed one.13 Vik Kanwar notes that the full ethical and constitutional implications of [declarations] have yet to be explored. …