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) 6) Death, Difference, and Conscience Two prominent truisms figure prominently in the broad death penalty discourse: “death is different” and the jury is the “conscience of the community .” The idea that death is fundamentally different from other punishments, articulated by Justice Potter Stewart in Woodson and reaffirmed by Justice Thurgood Marshall in Ford v. Wainwright, formed the basis for striking down mandatory death sentence laws. North Carolina had passed the statute in question following the Supreme Court’s 1972 Furman decision, which struck down capital punishment on the grounds that it was capricious and arbitrary. The penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. ( Woodson v. North Carolina, 1976 A jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death. ( Witherspoon v. Illinois, 1968 148 ) exile & embrace ) In response, North Carolina and Louisiana adopted laws mandating the death penalty for certain offenses. Finding that these new laws violated the Eighth and Fourteenth Amendments, the Court ruled that because death cannot be considered like any other form of punishment, the individual defendant cannot be treated simply as a member of a class of offenders. Rather, he must be considered a unique, discrete individual when determining whether his offense merits the state’s most awesome punishment.1 The capital jury—the “governmental body” specifically convened to determine whether and when that most awesome punishment should be ­applied— ​ is taken to be the community’s conscience. Interposed “between the accused and his accuser,” this “group of laymen” is responsible for deciding first guilt and then punishment. We take for granted that juries recommend appropriate punishments, punishments that represent the community’s values. Though individual jurors are expected to bring their own moral judgment and life experiences to bear on their decision, once they are convened they become a “unique collegial body” that speaks for themselves and their community and on behalf of contemporary standards of decency. Their agency is not untrammeled, however, and debate continues over the extent to which capital juries truly represent the community from which they are drawn or act as its conscience.2 I look at two problems in this chapter: what it means to say that “death is different” and that the jury is the community’s conscience. I examine posttrial briefs filed during the appeals process, especially those filed by religious organizations,3 to work through the arguments and counterarguments and reveal the operative conceptions of the defendant and community, as well as what it means to speak of conscience in this context. In the process, I answer two questions that arise in these briefs: whom do we sentence to death, and who is the “we” that recommends the sentence? Finally, I apply a definition of conscience to the discussions carried out via the briefs and, by reconciling that definition with the operative concept of conscience at work in the briefs, propose a solution to a major problem posed by the conjunction between religion and law in capital cases. The Briefs Litigant and Amicus Curiae Two basic types of briefs are submitted to the courts during the appeals process. The first of these is the litigant brief, submitted by the petitioner, the party seeking relief, or the respondent, the party seeking to convince the appellate court to uphold the lower court’s decision. These briefs clarify the issue(s) on appeal and explain the parties’ positions as clearly as possible in anticipation of argument before the appellate court. These briefs are limited in scope, content, and length by the various procedural laws and guidelines of ( Death, Difference, and Conscience ( 149 the relevant jurisdiction and court, and are generally narrowly tailored to one or several specific points of law and the application of that law to the specific facts of the particular case. The second type, the amicus curiae brief, is filed neither by the parties nor in conjunction with their briefs. Amicus briefs are filed by “a nonparty with a strong interest in the subject matter of the case.” This nonparty is “an organization or person...


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