I live with a public defender engaged exclusively with capital murder. That death penalty gets a lot of play in our discussions together, and with friends and acquaintances. The position of Sarah Stockton Howell, that the person on the other side of the bars (or burning a village and torturing and killing the occupants, or a party in "extraordinary rendition", or the 9-11 hijackers) is of us, is elemental, but so discomforting that it does not persist explicitly in conversations - though I wish that it would. But, concurrently, human nature, development, and circumstances are the basis of mitigation in the penalty phase of a capital murder trial when the state is seeking death. Done thoroughly and knowledgeably, penalty phase mitigation opens broadly for view the life of the convicted. Victim's loved ones and community may also be asked by either side to come forward in this phase. The penalty phase is not so closely bounded by what is allowed in testimony and argument as the guilt phase. Guilt is by then concluded and accepted. Also, jurors have guaranteed in advance that they could choose the death penalty. The state tries to evoke severity or even vengeance in the jurors, while the defense takes the position that the act proven may not be so surprising in the view of the jurors, given the total picture and their own life experiences. The jury is left to determine whether death is the best course for the state to take and the court must comply with their decision. Admittedly, residual doubt about the strength of the state's case could still figure in, with one or more jurors in rejecting the state's claim that death is due. But this too acknowledges shared vulnerability to error, misjudgment, hubris, or even malice. The penalty phase, despite its formal, mechanistic, and practical way under current American law, at least leads more toward Sarah Stockton Howell's understanding than away.
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