The Death Penalty as Incapacitation
104 VA. L. REV. 1123 (2018)
77 Pages Posted: 8 Mar 2018 Last revised: 10 Dec 2018
Date Written: October 24, 2018
Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.
How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary. Yet solitary confinement and life without parole entail new harms— either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.
This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair. It concludes by highlighting several of the most promising reforms.
Keywords: death penalty, criminal law, criminal procedure, constitutional law
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