Academic

Berry on Procedural Exceptionalism & the Death Penalty

By Lawrence Solum

William W. Berry III (University of Mississippi School of Law) has posted American Procedural Exceptionalism: A Deterrent or Catalyst for Death Penalty Abolition? (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

This article offers a new theory to explain the persistence of the death penalty in the United States at a time when most western nations have abolished it. Contrary to cultural explanations that have been advanced by other scholars, this piece hypothesizes that the retention is best explained by "American procedural exceptionalism," defined as the unique American belief in the efficacy and fairness of its legal process. This American exceptionalism of process validates the expression of the impulse toward retribution commonly found in western nations. In other words, the perceived fairness of the process affirms the retributive notion that the execution of a murderer achieves justice for society.

When the American death penalty process is shown to be unjust, arbitrary, or discriminatory in its administration, the defect in the process serves as a check on the retributive impulse. The result is a move to halt (or reduce) the use of the death penalty. Thus, according to the theory, the retention and continued administration of the death penalty in the United States rests upon a belief in the fairness of the American judicial process in capital punishment cases.

Full post as published by Legal Theory Blog on August 05, 2008 (boomark / email).