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Tuesday, September 23, 2008

Executing Retributivism in real life?

Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.

Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.

Posted by Administrators on September 23, 2008 at 10:00 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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I don't know the precise data on rates of prison rape, but I think it's the case that in at least some states, male prisoners are exposed to a greatly elevated risk of being raped as opposed to the risk they faced on the outside. If that's true, do you think that result (hugely increased risk of rape) should be understood as part of the punishment that was intended by the legislature and jury?

Posted by: Trevor Morrison | Sep 25, 2008 6:44:32 PM

Thanks, Dan. Yes, I believe I read those responses in the HLR.

As for your first paragraph, my view is that when a legislature or jury imposes a punishment, they mean to impose the punishment and its natural consequences together. The two can't be separated, and yet the natural consequences that are intended don't need to be specified as part of the punishment. That's my sense, at least.

Anyway, good luck with the project.

Posted by: Orin Kerr | Sep 25, 2008 12:23:01 AM

Orin, my sense is that your response conflates what the punishment is with what the punishment may achieve. The jury/court/legislature announces what the punishment is--death, prison, fines--but the internal struggle a defendant has is not something the government or public can impose by fiat: at best it's something we can hope for. What makes that aspiration a retributivist one is that the aspiration is the goal or telos is internal to the practice of punishment between the state and offender and not contingent on some external goal of general deterrence or social satisfaction, which might be achieved through other methods. And of course, some offenders will remain inert or rejectionist and thereby cast aspersions upon the retributive condemnatory message the retributivists want to send to the offender.

In any event, it seems like your relation to punishment theory is much like the students' reaction to legal reasoning and crude legal realism that was discussed in Verity's post. For what it's worth, I used to be in favor of the death penalty before I started reading and thinking about the issue in law school; and I still think there's something powerful though decidedly non-retributist about the life-life tradeoff scenario presented in the Sunstein-Vermeule paper (which I discussed in the Harv CRCL paper and on this blog). The idea that the death penalty may be justified not as a punishment but as a regulatory device is one I take seriously; the problem is that the moment it loses its currency as retributive punishment is also when it is likely to lose its appeal as a regulatory device too. Alas. I can certainly understand your frustration with theorists who may be doing nothing more than expressing policy preferences in fancy dress; but it's important to be able to explain why one's policy preferences are what they are or how they cohere with other beliefs of ours (such as fairness or justice or efficiency) rather than to just burp the intuitions out as if they are self-executing arguments. Perhaps you'll find helpful some of the HLR and other responses to Posner's Holmes Lectures at HLS on the problematics of legal and moral theory.

Posted by: Dan Markel | Sep 24, 2008 10:20:52 AM

Wow, rejection of centuries of philosophical tradition in just over five lines. Impressive!

Posted by: Trevor Morrison | Sep 24, 2008 10:13:09 AM

But the best evidence of what the intended punishment is what the jury/court announces in consonance with what the legislature authorizes.

No, I believe that is incorrect. If that were the case, wouldn't you need evidence that when the people give someone prison time, they intend that time to be spent in an "internal struggle"? Wouldn't you need evidence that the jury announced and the legislature authorized (or mandated) an "internal struggle"? It's not necessary, I think, because there's no point in legislating what already happens naturally. That is true both in the death penalty and prison context.

Perhaps I should acknowledge being more deeply skeptical about the project more generally: In my experience, the 100% accurate test for whether a retributivist will be against the death penalty is whether they were against the death penalty in the first place, before they knoew the 1st thing about retributive theory. I think that in this context, retributivism is a glossy overlay over preexisting policy preferences: It dresses up our common intuitions about fairness in academic garb, but I don't think it actually advances the ball beyond whether a person happens to favor or disfavor the practice in question. That's my take, at least. Perhaps I am too cynical.

Posted by: Orin Kerr | Sep 24, 2008 1:12:51 AM

Orin, I don't doubt that you or others may want to have inmates have some time to ruminate about their wrongdoing. But the best evidence of what the intended punishment is what the jury/court announces in consonance with what the legislature authorizes: as far as I know, no death row defendant is sentenced to a punishment of X years plus death. Do you know of any? As far as I know, the punishment the jury announces is either X years or life in prison, or death. Thus the amount of time they have prior to death is contingent on procedural wrangling and not intended as such to be the communication. So to me, that's indicative that the intended punishment is the execution and that the execution is supposed to be the instrument of intentionally condemnatory hard treatment and not the time before then.

Of course, it would be a somewhat harder issue for my argument (qua interpretation) if X years in prison to be followed by lethal injection was the intended punishment. But even there, my normative claim is that it's important that defendants continue to have the opportunity to show fidelity to the correct values that animate retributive punishment. So, for the state to deprive the offender of that opportunity to evidence his attachment to or appreciation of correct values (Nozick's slighly odd but still illuminating term) would be a wrongful foreclosure of the point of this communicative view of retribution. Moreover, because of the other reasons I discuss in the paper, there are a cluster of reasons retributivists would be leery of imposing the death penalty: accuracy, even-handedness, concerns for collective and individual dignity, and immodesty associated with a belief of infallibility (in the sense that when the state wrongly punishes someone through the death penalty, the state is irreparably prevented from apologizing and trying to ameliorate the wrong, whereas the same is not true for less drastic punishments). I try to develop these points more in the paper, and perhaps there the discussion will be more persuasive to you than these fleeting remarks.

Posted by: Dan Markel | Sep 23, 2008 11:13:00 PM


Who is "we"? And how do you know what "we" intend?

In my experience, most people who favor the availabiiity of the death penalty (a group that includes me and excludes you) say that they want inmates to have some time to think about their crimes and their sentence before being executed. That's considered an important part of the punishment. If my experience is presenting an accurate picture, isn't your hypothesis of what "we" want simply incorrect?

Of course, you may be thinking of what some self-described "theorist" thinks rather than what most regular people think; I would think the latter is the relevant issue, not the former.

Posted by: Orin Kerr | Sep 23, 2008 6:31:06 PM

Hi Orin,
that's a point I address in the paper; the answer has to do with intentions lining up to causal actions in order to achieve the right sort of Gricean meaning. In brief, we don't intend for the period of procedural wrangling to be the punishment so it can't inherently serve as the intended time during which and after the person internalizes the values and evidences that internalization. To borrow Nozick's example from Philosophical Explanations: it's a bit like saying that a murderer in a canyon who is killed by an avalanche accidentally caused by a witness leaving to report the crime is not intentionally punished, so it can't be that the death of the murderer (which happens as a result of his murdering but not purposely so) is the murderer's retribution.

That said, you're right that some offenders on death row may experience that "internal struggle," but it's not intended as such when we view the execution as the punishment and not the period in prison leading up to that as the punishment. Anyway, that's an aspect of the argument at least. Thanks.

Posted by: Dan Markel | Sep 23, 2008 11:38:00 AM


I don't think I follow this. Doesn't being on death row for many years (and in some cases, decades) serve a communicative function that induces an "internal struggle"?

Posted by: Orin Kerr | Sep 23, 2008 10:19:44 AM

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