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Friday, September 05, 2008

Executing Retributivism is up on SSRN

Just a quick note to point out that I've placed on SSRN a draft of a new paper I earlier discussed on the blog. The paper is called, at least for now, Executing Retributivism. Unlike most of my work, which is largely normative legal theory applied to discrete policy issues, this piece is quite a bit shorter (!) and more interpretative in nature: that is, it furnishes a close read of a relatively recent case of SCOTUS, Panetti v. Quarterman, and tries to situate that case's reasoning within the theoretical framework I've deployed before in the context of the death penalty. I argue that this decision has far greater consequences than previously realized if the decision is read properly and extended consistently. Here's the abstract:

In Panetti v. Quarterman, a Supreme Court case from last year about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. As this Essay explains, the Court’s “rational understanding” requirement only makes sense in light of a larger theory that understands state punishment primarily as a communicative and retributive encounter between the state and the offender. Once contextualized within that theoretical framework, the Court’s reasoning raises two profound and insufficiently appreciated consequences.

First, the Panetti decision upends the Court’s Eighth Amendment jurisprudence requiring neutrality among sentencing purposes selected by the states. Rightly read, the case elevates “negative retributivism” to a place of primary importance in constitutional criminal law. Thus, judicial consistency with Panetti necessitates substantial revision to the treatment of claims of actual innocence, to the warehousing of mentally ill persons in prisons, and to judicial assessments of sentencing proportionality. Second, Panetti’s reasoning quietly erodes the rationale for the continued use of the death penalty in the United States. In short, once properly construed, Panetti, a seemingly sleepy case about a doctrinally narrow issue, changes everything.

Posted by Administrators on September 5, 2008 at 12:11 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel, Legal Theory | Permalink


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Chris, as it happens there's a bit of discussion of both those issues--the title plays on the two ways one can "execute" retributivism: by implementing it or by doing violence to it...

Orin, I wonder who "they" are! A perpetual motion machine sounds cool--I wonder if I can rig one to write law review articles for me.

Posted by: Dan Markel | Sep 7, 2008 8:07:39 PM


As they say, give me a judicial commitment to logic and consistency, and I can build you a perpetual motion machine.

Posted by: Orin Kerr | Sep 5, 2008 7:36:06 PM

The title "Executing Retributivism" sounds a little like it'll discuss retributivist arguments for the death penalty, or retributivist arguments for different death penalty methods (e.g., "they deserve to suffer a bit first!").

Posted by: Chris | Sep 5, 2008 12:48:30 PM

Hi Orin,
I think what I wrote was that once the case is "properly construed" it changes everything...of course even that is predicated on the assumption that there's some judicial commitment to logical reasoning and consistency :-)

Posted by: Dan | Sep 5, 2008 10:23:17 AM


Mnor question. From a legal realist perspective, what does it mean to say that a case no one thinks means anything (including the Justices that wrote it and signed on to it) actually "changes everything"? Isn't the more direct way of phrasing that to say that although the case doesn't change anything, it would be normatively preferable if it did -- and that your article tries to articulate the best, most plausible way to say it did?

Posted by: Orin Kerr | Sep 5, 2008 9:19:12 AM

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