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35 Santa Clara L. Rev. 547 (1994-1995)
Social Context of Capital Murder: Social Histories and the Logic of Mitigation

handle is hein.journals/saclr35 and id is 565 raw text is: THE SOCIAL CONTEXT OF CAPITAL MURDER: SOCIAL HISTORIES AND THE LOGIC OF MITIGATION Craig Haney* The death penalty, which really neither provides an exam- ple nor assures distributive justice, simply usurps an exor- bitant privilege by claiming to punish an always relative culpability by a definitive and irreparable punishment. -Albert Camus' As great as is my compassion for Robert Harris the child, I cannot excuse nor forgive the choice made by Robert Harris the man. -California Governor Pete Wilson2 I. INTRODUCTION The system of death sentencing in the United States is a model of bad faith. It is founded upon several basic myths, one concerning the reality of capital murder-the act that gives rise to the punishment, another concerning capital ju- risprudence-the legal procedures by which those defendants who supposedly deserve to die are selected from those who do not, and one concerning the reality of executions-the act that culminates the lethal process. The first myth, what might be called the myth of demonic agency, serves to deny the humanity of the persons who commit capital murder, sub- stituting the heinousness of their crimes for the reality of their personhood. The second one-the myth of super due process-implies that the legal procedures under which cap- ital punishment is administered are so extraordinarily fair * Professor of Psychology, University of California, Santa Cruz; B.A. Uni- versity of Pennsylvania (1969), M.A. Stanford University (1971), Ph.D. Stan- ford University (1978), J.D. Stanford Law School (1978). 1. Albert Camus, Reflections on the Guillotine, in Resistance, Rebellion, and Death 131, 161 (1960). 2. Decision, In the Matter of the Clemency Request of Robert Alton Harris, at 3 (Apr. 16, 1992). 547

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