Legal Commentary

Just a quick note to point out that I've placed on SSRN a draft of a new paper I earlier discussed on the blog. The paper is called, at least for now, Executing Retributivism. Unlike most of my work, which is largely normative legal theory applied to discrete policy issues, this piece is quite a bit shorter (!) and more interpretative in nature: that is, it furnishes a close read of a relatively recent case of SCOTUS, Panetti v. Quarterman, and tries to situate that case's reasoning within the theoretical framework I've deployed before in the context of the death penalty. I argue that this decision has far greater consequences than previously realized if the decision is read properly and extended consistently. Here's the abstract:

In Panetti v. Quarterman, a Supreme Court case from last year about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. As this Essay explains, the Court?s ?rational understanding? requirement only makes sense in light of a larger theory that understands state punishment primarily as a communicative and retributive encounter between the state and the offender. Once contextualized within that theoretical framework, the Court?s reasoning raises two profound and insufficiently appreciated consequences.

First, the Panetti decision upends the Court?s Eighth Amendment jurisprudence requiring neutrality among sentencing purposes selected by the states. Rightly read, the case elevates ?negative retributivism? to a place of primary importance in constitutional criminal law. Thus, judicial consistency with Panetti necessitates substantial revision to the treatment of claims of actual innocence, to the warehousing of mentally ill persons in prisons, and to judicial assessments of sentencing proportionality. Second, Panetti?s reasoning quietly erodes the rationale for the continued use of the death penalty in the United States. In short, once properly construed, Panetti, a seemingly sleepy case about a doctrinally narrow issue, changes everything.