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The Heart Has its Value: The Death Penalty's Justifiable Persistence

Douglas A. Berman and Stephanos Bibas, "The Heart Has Its Value: The Death Penalty's Justifiable Persistence," in Robinson, Ferzan & Garvey, eds., Criminal Law Conversations, 2009

U of Penn Law School, Public Law Research Paper No. 08-35

Ohio State Public Law Working Paper No. 114

4 Pages Posted: 7 Aug 2008 Last revised: 10 Apr 2009

Douglas A. Berman

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

Stephanos Bibas

University of Pennsylvania Law School

Abstract

This short comment responds to Susan Bandes' assertion that putting emotions "at the center of the debate about [capital punishment's] fate" will lead the death penalty to "die a well-deserved death." On the contrary, reengaging with emotion will reinvigorate capital punishment. Capital emotions are more nuanced than Bandes suggests in distinguishing which killers are so evil that they deserve the ultimate penalty. She prefers the warm-and-fuzzy emotion of empathy, but offers little justification for squelching the visceral capital emotions. Perhaps Vulcan criminal justice would not need to vent outrage at the worst killers, but human criminal justice must and inevitably will.

Keywords: criminal justice, criminal procedure, capital punishment, death penalty, emotion, capital emotions

Suggested Citation

Berman, Douglas A. and Bibas, Stephanos, The Heart Has its Value: The Death Penalty's Justifiable Persistence. Douglas A. Berman and Stephanos Bibas, "The Heart Has Its Value: The Death Penalty's Justifiable Persistence," in Robinson, Ferzan & Garvey, eds., Criminal Law Conversations, 2009; U of Penn Law School, Public Law Research Paper No. 08-35; Ohio State Public Law Working Paper No. 114. Available at SSRN: https://ssrn.com/abstract=1201707

Douglas A. Berman

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 (Contact Author)

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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