Imagining a Retributivist Alternative to Capital Punishment
Posted: 20 Oct 1998
Date Written: February 1998
The capital punishment debate is dominated by pro- and anti-death penalty zealots. There is little advocacy for an intermediate position to which a majority of Americans 'the "ambivalent majority," subscribe: that some crimes are so wicked that the perpetrators deserve the greatest possible degree of retributive punishment consistent with civilized society; but that death is not the only, nor the preferable imaginable such punishment.
The Article proposes a constitutionally acceptable retributivist alternative to capital punishment that could attract broad enough support from the ambivalent majority to supplant the death penalty. The Article explains why the ambivalent majority has rejected the currently most severe alternative, "life without parole," because the prison system cannot guarantee that the perpetrator will experience sufficient retributive effects; and because an LWOP sentence does not have the same expressive effect as a death sentence. The Article proceeds to examine two models of harsh conditions of confinement; hard labor, and sensory deprivation/solitary confinement, and argues that only the latter is both practical and sufficiently retributive in highest condemnation cases. The author then proposes an Aggravated Murder statute, and an accompanying sensory deprivation punishment regime, that would implement such an alternative. Finally, the Article examines and rebuts objections that the alternative is either too harsh or too lenient. While the author is pessimistic regarding the political prospects of his proposed alternative, he hopes to spur public debate.
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