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State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty

55 Pages Posted: 2 Nov 2005 Last revised: 19 Jan 2009

Dan Markel

Florida State University College of Law (Deceased)

Date Written: October 1, 2005

Abstract

In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.

Keywords: Retribution, retributivism, death penalty, capital punishment, execution, punishment, crime, criminal justice, clemency, mercy

Suggested Citation

Markel, Dan, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty (October 1, 2005). Harvard Civil Rights-Civil Liberties Law Review, Vol. 40, pp. 407-480, 2005; FSU College of Law, Law and Economics Paper No. 05-24. Available at SSRN: https://ssrn.com/abstract=567561

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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