Dan Markel on the Death Penalty (I)

The Retributivist Case Against the Death Penalty

The blogosphere has been abuzz about Sunstein and Vermeule's paper arguing that capital punishment may be morally required.  I have a long blog on that, which I will post later.  In the meantime, let me get the shameless self-promotion out of the way first.  A draft of my forthcoming piece on the death penalty is now available at SSRN.  Its full title is State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution, and it is coming out soon in the Summer 2005 issue of the Harvard Civil Rights-Civil Liberties Law Review.  (Note that the version on SSRN is still a draft and pagination, format, etc. will change.)

Basically the piece explains how best to understand retributive justice, how it differs from revenge, and why that distinction can justify both former Illinois Governor Ryan’s blanket commutation of death row and a general abolition of capital punishment.  The goal of the piece is to deliver a (figurative) punch in the stomach to those who justify the death penalty (e.g., various members of the Supreme Court and an array of commentators) in terms of retributive justice.

           I will be grateful, of course, for any comments.  If the comments come in the next few weeks, there’s a decent chance I’ll be able to revise the piece in light of them.  Please send comments of any sort to our email account at prawfsblawg at gmail.com, and substantive comments below.