Retribution, Recognition, and Capital Punishment

Abstract:     
Under the Eighth Amendment, a form of punishment is invalid if it fails to measurably contribute to the acceptable goals of punishment. In the death penalty context, the relevant goals are retribution and deterrence. In this Article it is argued that capital punishment is not a valid form of retribution and, in part for that reason, is unconstitutional as well. Part I examines Ford v. Wainwright and Panetti v. Quarterman, in which the Supreme Court held that the state does not further its interest in retributive justice when it executes an offender who, due to mental illness, cannot understand the nature of the death penalty or the reasons for its imposition. These rulings reflect the view that retributive justice requires the possibility that an offender will recognize in the severity of punishment the gravity of the offense itself, and will in this way be reconnected to correct values, to victims, and to the moral community. Part II argues that such recognition is impossible in cases of capital punishment because the offender does not experience the evil of death, namely the deprivation of the goods that life makes possible. In particular, it is argued that it is not enough that an offender predicts and then undergoes a given penalty; the offender must experience the penalty and recognize in that experience the magnitude of the offense. Part III argues that capital punishment is therefore unconstitutional. As in Ford, the possibility that an offender will recognize in the experience of a penalty the magnitude of the offense is a side constraint on the pursuit of consequentialist goals. Moreover, in the death penalty context the Court has distanced itself from general deterrence and looked instead to the deterrability of specific classes of offenders. Capital punishment therefore fails to measurably contribute to the acceptable goals of punishment and is unconstitutional not merely as applied but also per se.

Keywords: Eighth Amendment, retributive, retribution, capital punishment, death penalty, Ford, Wainwright, Panetti, Quarterman, Nozick

working papers series