I do not support the death penalty. I do not believe mere mortals possess the moral authority to sit in judgment of other mortals to the extent of sentencing them to death. And the emergence of DNA testing shows it is too easy to put an innocent person to death; the Innocence Project has resulted in the release of 17 death-row inmates based on DNA evidence. I will admit that in the case of people like Ted Bundy, Timothy McVeigh, and, indeed, Osama Bin Laden, my opposition to the death penalty is difficult to sustain, just as it would be if a loved one were the victim of a capital crime.

It seems death sentences and executions have been decreasing in the US. In “The Mitigator” in The New Yorker, Jeffrey Toobin writes about one reason — the increasing use of mitigation, “a strategy that aims to tell the defendant’s life story.” (You can read the intro to the article, but the rest is behind a paywall.)

Toobin notes:

For a long time, defense lawyers didn’t know how to use [the mitigation] option to their advantage, and many largely ignored the penalty phase. In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation …

Toobin quotes Scharlette Holdman, a pioneer in the mitigation field:

As we in local communities began to look for mitigation, we saw it as pesenting the narrative of someone’s life, and we became acutely aware that is was a very specialized, complex undertaking. … That narrative is not there for the asking. … It requires not just knowledge and skill but experience in how you search for identity, locate, recognize, and preserve the information.

While Toobin notes that “it’s not easy to draw out those stories, much less present them in court,” but “in recent years the practice has been refined and systematized.”

Before that, though, was “a heartbreaking time,” in the words of the focus of Toobin’s article, Danalynn Recer, executive director of the Gulf Region Advocacy Center (GRACE). Back then, Recer recalled thinking, “Surely the courts will listen to someone’s life story before killing them.” Well, they didn’t.”

Recer’s summation in a case in which this story-based mitigation resulted in a life-without-parole sentence rather than the death penalty captures my feelings about capital punishment:

… the only question remaining is whether [the defendant] is going to die by the hand of God or by the hand of man, and that’s the bottom-line question we’re considering …