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Mercy on Trial:
What It Means to Stop an Execution
Austin Sarat

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Chapter 1 [HTML] or [PDF format] | Book Description

A Q&A with author Austin Sarat

How did you become interested in death penalty issues?

I first became interested in the 1970s after the Supreme Court declared the death penalty unconstitutional and then reinstated capital punishment four years later. I then left the issue behind as the country settled into a comfortable relationship with state killing. I returned to it in the early 1990s because, at that point, the death penalty seemed to provide a window onto many important issues in American law, politics, and culture. I turned to it to try to get a handle on what Americans were thinking about crime and punishment, race and racial justice, retribution and victim's rights, etc. My interest deepened during the 1990s as we reached the high water mark in death sentences and executions and as the tide began to turn against capital punishment. I have been fascinated to observe this period of national reconsideration of state killing, a period in which we have witnessed a 50% drop in the number of people annually sentenced to death and a similar decline in the number of executions. I am interested to see how this reconsideration turns out.

In your opinion, who benefits from the death penalty?

The death penalty provides symbolic satisfaction to some who have a black and white conception of justice. It may provide some temporary relief to the relatives of murder victims. It has certainly provided fertile grounds for politicians to exploit our fear of crime. But, in my view, the costs far outweigh the benefits. The death penalty does not make us a safer, saner society or one that gets closer to realizing its deals or dealing with its real problems.

Can you elaborate on the idea of mercy as 'lawful lawlessness?'

By lawful lawlessness I mean that mercy can be legally authorized but that it can't be legally regulated. It is comparable in that respect to the President's powers in times of national emergency. Thus the Constitution grants the President the power to grant pardons and reprieves and state constitutions grant comparable powers to state governors. But there are no legal rules prescribing when those powers can or should be used. As courts have said, chief executives can grant or withhold mercy "for good reasons, or bad reason, or no reason at all." This legally authorized, but not legally regulated, power is an important gap in the fabric of the rule of law.

Were you surprised by the executive clemency actions by Illinois Governor George Ryan when he commuted the capital sentences of death row inmates? What led to this decision? Was it more than a political move?

I was not surprised at the time though I would not have predicted it. From the time Ryan declared a moratorium on executions in Illinois in 2001, considerable pressure built up to grant clemency in at least some cases. But what Ryan did was truly unprecedented in its scope and its impact. It is the single biggest blow to capital punishment since the Supreme Court temporarily declared it unconstitutional in 1972. And, I think it was a significant move down the road toward abolition.

I don't know why Ryan did it. I can say that in his public explanation he presented himself as a tough on crime politician, sympathetic to the plight of victims, and totally unsympathetic to those whose lives he was sparing. In this sense he was surely responding to the prevailing political climate surrounding issues of crime and punishment.

How hopeful are you that Governor Ryan's transformation can be duplicated in other lawmakers and government officials?

Ryan began his career with a very pro-capital punishment position. No one could have anticipated what he did. But there is indeed a lesson here. The closer he got to the realities of capital punishment, the further away from the abstractions, the more disillusioned he became. Up close the death penalty system is deeply flawed, prone to error, and incompatible with Americans most basic commitments to due process and equal protection, to fairness and justice. Ryan's route to opposition is, I think, one that many Americans have already taken and that many more will take in the years ahead. Like him Americans are more and more saying that they may favor the death penalty in the abstract, but they are against executing the innocent, or executing people because of their race or the race of their victim, or because they are poor and can't afford a good lawyer. Where George Ryan has been, the entire nation is going.

Why are Americans so polarized on the death penalty issue?

This issue hits basic values and gut level commitments. One's position on this issue is a way of identifying the kind of person one is. So it is not surprising to me that this is a divisive issue. But I think we are finding common ground on issues like our fare of executing the innocent, our commitment to equal treatment, and our sense that the death penalty system is deeply flawed.

Did you attend executions as part of the research process for 'MERCY ON TRIAL' or any of your other books?

I have never attended an execution. At the same time I believe that executions should be televised so that anyone who wants to see what the state is doing in our name can have the opportunity to do so.

Can you talk more about why the risks associated with the concept of mercy are worth taking?

The risks associated with mercy arise from its lawless, ungovernable quality. Mercy can be dispensed with bias and favoritism, or it can be with held where compassion and good sense seem to call for it. What makes those risks worth taking is that justice can never be complete, rules can never anticipate every situation. We need a mechanism to allow for compassion even if it frustrates the demands of justice, to spare the lives of those whose lives do not seem worth sparing. Mercy is about who WE want to be, how WE want to live, the kind of society WE want our children to grow up in. A society without mercy is a cold society, a more unfeeling place, a hard place, a place without understanding and forgiveness. To avoid being that society we must run the risks that necessarily attend to mercy.

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File created: 1/23/2008

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