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Unpublished Paper
“An Existential Moment of Moral Perception”: Declarations of Life And the Capital Jury Re-Imagined
ExpressO (2012)
  • Rebecca T Engel
In many ways, death penalty jurisprudence, as well as its social status, have evolved at a rapid rate recently in the United States. This has occurred as the Supreme Court has twice declared capital punishment to be specifically unconstitutional in the last decade, in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), and as five states within four years have repealed it from within their criminal justice systems. (New York, New Jersey, Illinois, New Mexico, and Connecticut.) However, in other ways, the system has continued to lag, hardly moving from its difficult reinstatement under the “guided discretion” standard of Gregg v. Georgia, 428 U.S. 153 (1976), and of course, through its continued aggressive use in several states around the country. This Article takes a new stance from within this dualist world, by taking an old decision, Payne v. Tennessee (1991), and re-interpreting it from an entirely new perspective. More specifically, it argues that, contrary to current jurisprudence, documents such as “Declarations of Life”-- notarized documents that request that, in the event of the signer’s homicide, juries do not inflict the death penalty on their murderers-- should be fully admissible in court as forms of victim impact evidence. While Payne is a decision that has been largely criticized from within legal scholarship for many years, this Article argues that it is a decision with many different possible interpretations, none of which have been approached in the twenty-one years since its decision. In particular, Payne was a decision that not only inserted the concept of victim impact statements into death penalty jurisprudence, it also created an entirely new concept of relevance, one that took account of changing social and political mores. It is a conception of relevance from which documents such as Declarations of Life can fit, as they create equality within the landscape of relevant documents in death penalty sentencing and also are legally relevant within the specific definitions of Payne. In particular, with victim impact evidence, our legal system has already sanctioned one point in the capital trial in which arbitrariness is allowed to flourish, in the belief that certain information is necessary for the jury to be able to make its decision on life or death. It is at this point that documents such as Declarations of Life should also be made available to the jury under Payne. In its conclusion, this Article argues that documents like Declarations of Life, if allowed for within the evidentiary confines of Payne, may also allow for a type of intervention within the processes of moral disengagement that research has revealed makes up the majority of death penalty decision-making. This sort of intervention is at least partially what the victims’ rights movement was attempting to do twenty years ago, but data on capital trials have revealed that capital sentencing is an area in which jurors are still removed from society’s debates about retribution, punishment, and responsibility. In the context of American society’s continuing debates on capital punishment, this Article argues that when jurisprudence removes documents such as Declarations of Life from the sentencing process, it limits the jury’s ability to morally reflect on its decision and then transmit to transit it back to society, in the communicative, democratic enterprise that jury service, even in the death penalty realm, is designed to be.
Publication Date
August 26, 2012
Citation Information
Rebecca T Engel. "“An Existential Moment of Moral Perception”: Declarations of Life And the Capital Jury Re-Imagined" ExpressO (2012)
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