All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty

21 Pages Posted: 23 Apr 2018  

Susan A. Bandes

DePaul University - College of Law

Date Written: April 14, 2018

Abstract

In Courting Death: The Supreme Court and Capital Punishment, Carol Steiker and Jordan Steiker offer a richly textured and fair-minded account of the fraught relationship between capital punishment and the United States Supreme Court. As the book convincingly illustrates, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory. Although the book is clear-eyed and appropriately unsentimental, the authors hold out hope that a principled capital jurisprudence is possible. They seek to distinguish the factors that ought to animate the Court’s jurisprudence from those that are illegitimate.

This review of Courting Death proceeds in three parts. Part I describes the book’s main arguments. Part II explores the limits of employing legal doctrinal tools to shed light on the forces that shape and sustain capital punishment in the United Sates. In particular, it explores the implicit question underlying the Steikers’ critique: is there a path toward a principled capital jurisprudence? Part III focuses on so-called “expressive” theories of punishment, which emphasize the symbolic, communicative importance of the death penalty. It argues that expressive punishment theory has become a grab bag of poorly differentiated concepts that too often obfuscate rather than illuminate the death penalty debate. It then returns to the topic of Part II, exploring the difficulty of distinguishing “off-limits” or “extra-legal” political and emotional influences from appropriate legal influences on the death penalty debate. The review concludes that once all these arguably illegitimate influences are stripped away, a coherent, principled doctrinal capital punishment doctrine is not possible.

Keywords: capital punishment, expressive theory, law and emotion, penal theory, jurisprudence

Suggested Citation

Bandes, Susan A., All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty (April 14, 2018). 116 Michigan Law Review 905 (2018).. Available at SSRN: https://ssrn.com/abstract=3152627

Susan A. Bandes (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
(312) 362-8701 (Phone)

HOME PAGE: http://www.susanbandes.com/

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