Hastings Law Journal


Two powerful adjudicatory ideals-preserving individual autonomy and promoting systemic reliability-collide most dramatically in cases where capital defendants join the prosecution in seeking a death verdict. Capital defendants do this by "waiving" the presentation of all mitigation evidence and affirmatively urging the jury to sentence them to death. This supposed expression of autonomy (presumably not unlike other constitutional waivers) impedes the sovereign's constitutional mandate to pursue reliable capital sentencing. Does autonomy trump reliability? This Article examines the mitigation-waiver conundrum in a way never done before, and by doing so, aspires to illuminate how the rhetoric of autonomy suppresses destabilizing notions such as collective responsibility.

Attacking the conventional wisdom of mitigation as a mercy-inducing device leads to the realization that mitigation necessarily absorbs destabilizing ideas of collective responsibility and collective guilt, ideas that demand we go beyond sloganeering about autonomy. Considerations of collective responsibility and guilt that an effective mitigation presentation evokes belong not to the individual defendant, but to the community that must resolve its own entitlement to impose death.

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