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Wednesday, September 07, 2005

Finally

I'm happy to report that my latest article is finally up on Westlaw. The cite is 40 Harv. CR-CL L. Rev. 407 (2005), and is entitled, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty. 

The article provides the retributivist argument against the death penalty generally, and explains (more particularly) why Governor Ryan's blanket commutation of death row was compatible with, rather than contrary to, retributive justice.  The Supreme Court has on many occasions held that the death penalty is justified under the Eighth Amendment because of the alleged compatibility between retributive justice and capital punishment. My hope is that this article will weaken the penchant for such reliance. 

If you don't have Westlaw access, you can get a near-final version of it over here.

(Also of note: Adriaan Lanni, who's a rookie prawf at Harvard, has an interesting piece in the same issue, entitled "The Future of Community Justice.")

Here's the abstract and table of contents of State, Be Not Proud:

In the aftermath of Governor Ryan's decision in 2003 to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a "grave injustice," and, from a retributivist perspective, "an unmitigated moral disaster." This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.

                               TABLE OF CONTENTS
I.    Introduction ........................................................ 408
II.   What's Wrong with a Blanket Commutation of Death Row? ............... 416
      A.  An Unlawful Abuse of Power ...................................... 417
      B.  Improper Reliance upon Mercy .................................... 418
          1.  Mercy as Imperfect Obligation ............................... 418
          2.  Mercy as Equity ............................................. 419
          3.  The Implications of Mercy for a Blanket Commutation ......... 419
      C.  The Significance of Victim Interests ............................ 421
      D.  Moral Desert and Capital Punishment ............................. 422
III.  The Confrontational Conception of Retribution ....................... 425
      A.  The Animating Principles of Retributive Justice ................. 426

          1.  Moral Responsibility for Unlawful Behavior .................. 427
          2.  Equal Liberty Under Law ..................................... 430
          3.  Democratic Self-Defense ..................................... 432
      B.  Retributive Justice as an Institutional Practice ................ 435
      C.  Confrontational Retribution as Distinct from Revenge ............ 437
IV.   Retributivism and Ryan's Blanket Commutation ........................ 440
      A.  Abuse of Power Reconsidered ..................................... 441
          1.  Ryan's Commutation as Anti-Legislature ...................... 442
          2.  Ryan's Commutation as Anti-Jury ............................. 444
      B.  Error and Arbitrariness ......................................... 447
      C.  How Victims Matter, and How They Do Not ......................... 452
V.    Retribution and the Death Penalty ................................... 457
      A.  Contingent Retributivist Objections to Executions ............... 458
      B.  Conceptual Retributivist Objections to Executions ............... 460
          1.  Executions Prevent Internalization of CCR's Animating Values  460
          2.  Executions Immodestly Prevent the State from Meaningfully
                Taking Responsibility for Its Mistaken or Wrongful Actions  462
          3.  Executions Offend Human Dignity ............................. 464
      C.  Objections Considered ........................................... 468
          1.  Death and Deterrence ........................................ 469
          2.  Retribution, Moral Desert, and Death ........................ 474

Conclusion ................................................................ 477

Posted by Dan Markel on September 7, 2005 at 07:00 PM in Dan Markel | Permalink

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The Supreme Court has on many occasions held that the death penalty is justified under the Eighth AmendmentIsn't it more accurate to say that the Supreme Court has held that the death penalty is merely not prohibited by the constitution? Whether the death penalty is justified is beyond the scope of the constitution, lying in the political sphere as a general matter, and the judicial process as pertains to specific cases...

Posted by: Simon | Sep 7, 2005 9:34:14 PM

As we Canadians say, mazel tov, Dan. Now begins the compulsive checking of Westlaw.

Posted by: Paul Horwitz | Sep 7, 2005 9:55:22 PM

Simon, the Court has said on many occasions that the death penalty serves two purposes: retribution and deterrence. My sense is that if those goals were not served, then the Court would have to say there is no point to the death penalty and would therefore be prohibited by the Constitution (perhaps because cruelty is measured by reference to the goals it serves in a given situation?).

If I'm right about the retribution part -- and granted, my conception of retribution is distinct from the naked vengeance ideas the court has sometimes espoused under the rubric of retribution -- and if the quants are right that the (marginal) deterrence evidence is shaky or non-existent, then I think there would have to be a re-evaluation of whether the death penalty is permitted under the Constitution. Don't you think? (And yes, I realize there's a robust debate about the deterrence issue; check out Bob Weisberg's latest piece on the social science literature and the death penalty).
Paul, thanks for the kind words.

Posted by: Dan Markel | Sep 8, 2005 9:37:08 AM

I think there would have to be a re-evaluation of whether the death penalty is permitted under the Constitution. Don't you think?I'm actually leaning ever more in the direction of supporting the abolition of the death penalty, not least because I've seen no significant evidence that it deters, and I'm not sure that it punishes to the extent that a life in the slammer could. But none-the-less, were I convinced enough to seek to abolish it, I would have to go about that through the political process.

The due process clauses require due process to be undertaken before a duly-constituted instrument of justice may deprive a man of his life, liberty or property (i.e., before they may execute him, jail him or fine him; Killian & Costello, Analysis and Interpretation of the Constitution, p.1343 text accompanying notes 2-3). It seems to me to stand to reason, therefore, that as long as due process is provided, a duly-constituted instrument of justice can deprive a man of his life, liberty or property within the bounds of the constitution. Or rather, it contemplates that government can legitimately do all of these things, but it may not do so capriciously, arbitrarily, or without due process in pursuance of laws. I'm just not convinced that the cruel & unusual punishment clause was meant to flatly contradict something expressed but a few lines sooner in the bill of rights. My view tends to be that "[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture...and all others in the same line of unnecessary cruelty, are forbidden" (Wilkerson v. Utah, 99 U.S. 130, 135-6); accord III J. Story Commentaries 1896 ("It was, however, adopted, as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts"). The death penalty, per se, is not contemplated as within the prohibition of the 8th amendment, but some mechanisms of administering it may be. Id. at 134-5 ("Cruel and unusual punishments are forbidden by the Constitution, but...the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category") (emphasis added).

I've not had a chance yet to read your essay in depth, but I can well-imagine that it will further convince me that the death penalty is nuts; that it doesn't work, and it should be abolished. But I don't really see how that alone makes it unconstitutional.

Posted by: Simon | Sep 8, 2005 12:21:09 PM

Simon, one thing to bear in mind is that the Court has stated that the meaning of the 8A evolves over time in consonance with changing standards of decency and dignity of civilized societies. (That's a rough paraphrase of the relevant language of Trop v. Dulles, which has been repeated many times in subsequent 8A cases.) Thus, references to pre-Trop cases (and indeed the text of the 5A) do not -- in my view, and the views of others -- count as authoritative sources for precluding the abolition of the death penalty under the 8A. I reckon, given your past comments on the blog, however, that you're not much of a living constitution guy, so I wouldn't much expect to persuade you on the basis of later precedent and/or the relevance of normative arguments to constitutional interpretation. If you change your mind about that stuff, well, then the argument (as a court focused strategy) might be more appealing...
That said, I have no objection to using the political process to seek abolition (or blanket commutations), and the article's ambition, in part, is to lend succor and reason to executive and/or legislative actors who want to do that. So skip the legalisms and go out and agitate!

Posted by: Dan Markel | Sep 8, 2005 2:07:12 PM

Yes, "[t]he Court recognized in that case that the words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 356 U.S. 86 at 100-1. The formal declaration of war, the lodestar of living constitution jurisprudential philosophy. ;)

Off topic:
Trop is an odd case. I don't reach an eighth amendment question in that case. When I first read it, I stopped and read Warren's Perez dissent, and immediately agreed with his reasoning in the latter case. A person becomes an American citizen by right of birth, the Constitution provides for this and offers no method of retraction; ergo, government may not divest a person - a person like Trop; or like Hamdi, even - of his citizenship.

Warren wrote in Perez:United States citizenship is [per the 14th amendment, 1] the constitutional birthright of every person born in this country. This Court has declared that Congress is without power to alter this effect of birth in the United States. The Constitution also provides that citizenship can be bestowed under a 'uniform Rule of Naturalization', but there is no corresponding provision authorizing divestment...[T]he status of the naturalized citizen is [also] secure. As this Court stated in Osborn v. Bank of the United States, '[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual.'

Under our form of government, as established by the Constitution, the citizenship of the lawfully naturalized and the native-born cannot be taken from them." (356 U.S. 44, 66)(Warren, C.J., dissenting)(Citations and internal quotation marks removed)

And indeed, right up until the start of Part II of his Trop opinion, I'm largely right there with Warren. Then, for no good reason that I can fathom, Warren suddenly announces, "If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment". Why on Earth would we assume any such thing? It doesn't, as Warren had previously explained; Trop should have been decided simply by overruling Perez and making reference to Warren's dissent in that case.

So I don't really buy into the evolving standards of decency theory, and even if I did, I think that its genesis in Trop is very, very questionable, to my mind.

Posted by: Simon | Sep 8, 2005 4:46:20 PM

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