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Wednesday, April 16, 2008

Retributivism and Kennedy v. Louisiana

As Sam Kamin notes over at Co-Op, today the SCT is hearing arguments in Kennedy v. Louisiana, a case involving the constitutionality of the application of the death penalty to a person convicted of a non-homicidal crime, in this case, the rape of a child.  Because I still have to prep for two classes both today and tomorrow, our last day of the semester, I can't opine at length on the briefs until a bit later, but it's worth noting that the Court's support in the past for the death penalty has often been predicated on the assumption that retributive justice theory supports the death penalty. 

This article of mine from a couple years ago (update: sorry, I had the wrong link earlier) tries to systematically undermine that conclusion. In fact it gives strong reasons to think retributive theory, at least in the version I find most compelling, is actually hostile to the death penalty.  If that argument succeeds, it succeeds against the death penalty's use not only against murderers but also child-rapists. And since the Court has moved away in large measure from predicating its 8th Amendment analysis on non-retributive goals, it entails the conclusion that the Court should make the small move of extending Coker v. Georgia, which held that the Eighth Amendment prohibits the execution of a rapist of an adult, to this scenario.

I should also mention that there are very few self-described retributivists in the academy who support the death penalty. The one who comes to mind most readily is Robert Blecker of NYLS. Blecker's views in the past have been based on an intuitionist defense of retributivism, which I find unpersuasive. Putting that disagreement aside, it's worth noting that even Blecker has always tried to use the retributive justification of the death penalty as a defense of punishing with execution only the worst of the worst, and definitely not all murderers. My guess is that Blecker, along with others, would view a child-rapist  (or the rape of a child) as not as terrible or evil as a murderer (or the murder of a child). If that's the case, it would be problematic for the Court to reach any conclusion that retributivism supports the death penalty here -- when so few people who have consistently and mindfully aligned themselves under retributivism's flag take the opposite view.

Posted by Administrators on April 16, 2008 at 10:06 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink

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Dan Markel has an interesting post at PrawfsBlawg about how retributive theory fits into the Kennedy case:This article of mine from a couple years ago (update: sorry, I had the wrong link earlier) tries to systematically undermine that conclusion. In [Read More]

Tracked on Apr 16, 2008 1:42:25 PM

Comments

"But if intuitionism is all that matters, we should do what Orin seems to propose: just do polls. But once we're in the business of polling, we don't seem to really need constitutional restraints of the sort the Court has in the past found meaningful in the Eighth Amendment context."

Sure you do. Because there are things that the people in one state might consider un-cruel, but the vast majority of the country, as determined by poll, does find cruel or unusual. And then there's your constitutional restraint.

Posted by: Asher | Apr 18, 2008 12:07:57 PM

That's right Deb. But only if he's right...and of course, if he is right, it would also disqualify all the social scientists trying to discern the empirical effects of the death penalty as well. So we'd all be out of jobs.
For what it's worth, my sense is that the Court's precedents of the last one hundred years squarely reject Scalia's narrow reading of whose views count for interpreting the Eighth Amendment and it would seem that the purposive words behind the text of the Eighth Amendment invite a broader view of the relevant considerations as well.

Posted by: Dan Markel | Apr 18, 2008 12:05:34 PM

Not to jump into the middle of this (except, to do just that), but it seems to me, Dan, that if Justice Scalia is correct, your retribution-based opposition to the death penalty disqualifies you from having anything (critical) to say about (any particular application of) the death penalty.

Posted by: Deb Ahrens | Apr 18, 2008 11:44:08 AM

Anon, you are probably right to doubt that arguments about retributivism flowing from mere intuitions have the same status as efficiency arguments. But if retributivism is about more than just belly-tap intuitions, and I think it is or is best understood to be more than that, then there's good reason to find out what it really is or what it really demands. But if intuitionism is all that matters, we should do what Orin seems to propose: just do polls. But once we're in the business of polling, we don't seem to really need constitutional restraints of the sort the Court has in the past found meaningful in the Eighth Amendment context. Moreover, if retributivism is based simply on unscrutinized intuitions, it doesn't have much more force than saying: Punishment yay or punishment boo. It doesn't have much force unless we can see how it fits into our other considered judgments about what rules conduce to securing the conditions for human flourishing. But that's a longer story...

Posted by: Dan Markel | Apr 16, 2008 6:54:30 PM

Dan,

I disagree. And I have no idea how that undermines the death penalty; rather, it questions Supreme Court intervention in it.

Posted by: Orin Kerr | Apr 16, 2008 6:35:42 PM

Prof. Markel--

I have no quarrel with anything you say in your latest post. That the Court should "consult" the opinions of experts who have considered the question at issue seems perfectly reasonable. But I don't think (and this may be an area of disagreement) that those arguments for retributivism that derive from intuition (setting aside your disagreement with those arguments in this area) are like 'efficiency' arguments, which are often, though not always, readily quantifiable (by experts). There's lots more room to disagree here and it's not clear to me that the fact that even the most 'hard core' intuitionist retributivist of the academy doesn't feel that child rapists are evil enough (if in fact he feels that way, as you think) should make all that much difference to the Court. But I do agree that experts' view should be consulted, as you rightly say.

Posted by: anonymous | Apr 16, 2008 6:16:26 PM

Anon, if the Constitution were interpreted in such a way as to require that courts make the most efficient determination of how to resolve question X, don't you think it would be appropriate for the Court to consult the views of those people who are experts in assessing claims of efficiency?
The Court in the past, on this issue, has explicitly referenced both utilitarian/Benthamite arguments as well as retributive justice arguments.

The utilitarian arguments here are somewhat indeterminate: killing child-rapists gives them an incentive to kill the child victim if they will face the same penalty as the child-killer; the evidence of whether criminals are sensitive to deterrence signaling is generally not impressive (see Robinson and Darley's Oxford piece from 2004), and particularly in the death penalty context, compare Shepherd and Donahue, etc. Regardless, in assessing whether utilitarianism supports the death penalty, the Court consults what experts on that have to say.

Vis-a-vis the retributive justice arguments, the Court should do the same. It is problematic if it assumes that retributive justice inexorably leads to support for the death penalty, or if it uncritically conflates revenge and retributive justice (as some justices have done in the past). Thus, where the prior interpretations of the Court have pointed out explicit reference to what retributivists hold, they should consult the views of those who have given some substantial and extended thought to the matter.

Of course, one can easily (and in my view, in light of the broad purposive language, wrongly) say the 8th Amendment has nothing to do with retributive or utilitarian considerations--and that it's just a matter for historians to discern--but that's not the road the Court has paved for itself.

Posted by: Dan Markel | Apr 16, 2008 3:25:34 PM

One last thing: it strikes me as entirely non-obvious -- and therefore as an appropriate subject of debate about which reasonable minds might disagree -- whether child rapists are or are not "the worst of the worst."

Posted by: anonymous | Apr 16, 2008 12:22:17 PM

One sentence in there ought to read, "Or because arguments made by academics who have spent substantial time studying retributive justice are like to be convincing?" Sorry. But the general point, I guess, and with all respect to Prof. Markel, is, "Who do you think you are?!"

Posted by: anonymous | Apr 16, 2008 12:13:46 PM

But, Prof. Markel...this post seems to advocate an equally unusual mode of constitutional evaluation. Do you think that the S. Ct. should poll academics who have spent substantial time studying retributive justice? Is this an approach it should limit to retributive justice, or one that it should use more broadly? Or are you saying that the justices should be convinced by your arguments about retributivism because they are good ones? Or because arguments made by academics who have spent substantial time studying retributive justice are likely to make convincing arguments? As much as I like law professors (and I really, really do), these various ways of doing things aren't commonly used, are they?

Posted by: anonymous | Apr 16, 2008 12:07:58 PM

I think the idea is that people who have spent substantial time examining the nature, claims, and implications of retributive justice are in a better position (than bankruptcy professors or the public) to assess the validity of the claim that retributive justice supports the death penalty. If that claim is invalid, it undermines one of the arguments the Court has relied on in the past to permit the death penalty under the 8A.

Feel free to think *the really important issue* is what the American people think, but that ultra-majoritarian sensibility would seem to preclude constitutional analysis altogether. "Just poll the people" is, to my mind, an unfamiliar principle of analyzing this constitutional right. But maybe I'm wrong.

Posted by: Dan | Apr 16, 2008 11:07:01 AM

Dan writes: "I should also mention that there are very few self-described retributivists in the academy who support the death penalty."

Why is this worth mentioning, Dan? There are very few law professors who support the death penalty. The self-described retributivists are law professors. Ergo, it should not be at all surprising that there are very few self described retributivists in the academy who support the death penalty.

I think the really important issue is what the American people think, not what what "self-described retributivists in the academy" think.

Posted by: Orin Kerr | Apr 16, 2008 10:54:13 AM

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