The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty

Abstract

This short essay is a core text for Criminal Law Conversations, followed by my reply to comments by Stephanos Bibas and Douglas Berman, LaJuana Davis, Joseph Kennedy, Terry Maroney, Jeffrie Murphy, Robert Schopp, Mary Sigler, and Carol Steiker. The core text is adapted from my article "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty," 42 Studies in Law, Politics and Society 21 (2008).

The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or distorted) by fear, outrage, compassion, selective empathy and other emotional attitudes. Moreover, emotion theory illuminates the dynamics of the polarized debate. Though history, culture and politics are essential aspects of the discussion, both the resilience of capital punishment in the U.S. and the nature of the death penalty debate can be better understood by taking account of emotional variables.

Keywords: Death Penalty, Capital Punishment, Punishment, Criminal Law, Emotion