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"Mandatory Life and the Death of Equitable Discretion"

By Douglas A. Berman

The title of this post is the title of this notable new book chapter by Professor Josh Bowers, which is now available via SSRN. Here is the abstract: This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment ? at least in its mandatory form ? is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits ? indeed requires ? an equitable determination.  That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness ? to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant...continue to full post

Full post as published by Sentencing Law and Policy on March 27, 2011 (boomark / email).