Executing Retributivism: Panetti and the Future of the Eighth Amendment

60 Pages Posted: 7 Sep 2008 Last revised: 5 Aug 2009

See all articles by Dan Markel

Dan Markel

Florida State University College of Law (Deceased)

Date Written: August 5, 2009


In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.

Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.

Keywords: capital punishment, Panetti, death penalty, retributive theory, philosophy of punishment, Supreme Court, sentencing law and policy

Suggested Citation

Markel, Dan, Executing Retributivism: Panetti and the Future of the Eighth Amendment (August 5, 2009). Northwestern University Law Review, Vol. 103, pp. 1163 - 1222, 2009, FSU College of Law, Public Law Research Paper No. 318 , Available at SSRN: https://ssrn.com/abstract=1263683

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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