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Over the past fifty years, the death penalty has rapidly declined around the world. In 1965, only twenty-five countries were in the abolitionist camp. By 2018, 106 countries had legally abolished the death penalty for all crimes, and another thirty-six countries were deemed “de facto” abolitionist by Amnesty International (reflected in part by not carrying out any executions over the past ten years). The magnitude of the shift from majority retentionist to majority abolitionist jurisdictions does not capture the depth of the world’s turn away from the death penalty, what is fairly characterized as a true “global movement toward the universal abolition of capital punishment.” During this turn, countries have increasingly viewed the death penalty not as a local issue of criminal justice policy but rather as an issue of fundamental human rights, with an imperative to end the practice through international advocacy and treaties. During this period, the United States came quite close to being on the early side of this global movement, having experienced an informal moratorium on executions for almost ten years (June 1967–January 1977), followed by what many thought at the time was the end of the American death penalty — the Supreme Court’s invalidation of prevailing capital statutes in Furman v. Georgia 1972. But state legislatures reasserted their commitment to the death penalty in response to Furman, the Court affirmed the basic constitutionality of the death penalty in 1976, executions resumed in 1977, and the United States emerged as one of the world’s leading executioners by the mid-1990s. The revitalization of the American death penalty, coinciding as it did with the marked decline of capital punishment in the rest of the world, led many to wonder what accounted for American exceptionalism — its emergence as the sole developed Western democracy with both the death penalty on the books and active execution chambers.
In the fall of 2009, we started planning a conference at Harvard Law School to celebrate the life and scholarly achievements of Bill Stuntz. Had it been up to Bill, this celebration never would have happened. “I feel uncomfortable about this,” he emailed one of us. “It all seems to me undeserved – I’m not at that level – and I would think no one would be interested in writing for or publishing it.”
Although characteristically modest, Bill was obviously wrong about his stature within the legal academy, where he is widely esteemed as the preeminent criminal procedure scholar of his generation. “Of course I’ll be there,” one leading scholar replied to our invitation. Every other invitee likewise accepted – quickly and enthusiastically, even when attendance required rearranging prior commitments.
It is a signal honor to succeed Bill Stuntz as the Henry J. Friendly Professor of Law at Harvard. To hold a Chair named for such a respected judge and held by such a respected scholar and beloved colleague and friend is not only an honor but also an inspiration – to hone my own craft, to think harder, and to reach farther, both professionally and personally.
Stuntz and Friendly were both brilliant and principled in their respective legal domains, but I’m sure I was not the only one to joke with Bill that he was more “friendly” than his Chair's namesake, who was known to be rather intimidating. My topics for this chapter – mercy and justice, in Bill Stuntz's work and my own – may lead some to a similarly amused bemusement, in that my approach to this topic is more explicitly religious in inspiration than Bill's own, despite the fact that he was a devout Christian and I am an (at most) agnostic Jew. Perhaps it was Bill's unconscious influence, or perhaps it was my very agnosticism that liberated me to explore theology as a source of public values, but it was I (and not Bill) who gave a keynote address at a Chicago Divinity School conference, on “Doing Justice to Mercy,” and who later co-taught a course with a Harvard Divinity School professor on “Justice and Mercy in the Jewish and Christian Traditions and American Criminal Justice.” In what follows, I hope to show that the theological origin of the concept of mercy offers both a contrast to and a path toward a human-scaled practice of mercy – a practice informed by and sympathetic to Bill's own criminal justice scholarship and Christian commitments.
The past several decades have seen a renaissance in criminal procedure as a cutting-edge discipline and as one inseparably linked to substantive criminal law. This renaissance can be traced in no small part to the work of a single scholar: William Stuntz. This volume brings together twelve leading American criminal justice scholars whose own writings have been profoundly influenced by Stuntz and his work. Their contributions consist of essays on subjects ranging from the political economy of substantive criminal law to the law of police investigations to the role of religion in legal scholarship - all themes addressed by Stuntz in his own work. Some contributions directly analyze or respond to Stuntz's work, while others address topics or themes Stuntz wrote about from the contributor's own distinctive perspective.