Engaging Capital Emotions

11 Pages Posted: 31 May 2008 Last revised: 20 Aug 2014

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Stephanos Bibas

University of Pennsylvania Law School

Date Written: 2008


The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.

Keywords: death penalty, capital punishment, emotions, Kennedy v. Louisiana, Eighth Amendment, child rape, innocence, wrongful conviction, exoneration, deterrence, justice, mercy

Suggested Citation

Berman, Douglas A. and Bibas, Stephanos, Engaging Capital Emotions (2008). Northwestern University Law Review, Vol. 102, P. 355, 2008, U of Penn Law School, Public Law Research Paper No. 08-21, Ohio State Public Law Working Paper No. 113, Available at SSRN: https://ssrn.com/abstract=1139184

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

Stephanos Bibas

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

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