Academic

Bandes on Emotion & the Death Penalty

By Lawrence Solum

Susan A. Bandes (DePaul University - College of Law) has posted Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty Vermont Law Review, Vol. 33, No. 3, 2009

It is often assumed that the anger, outrage and other strong emotions provoked by repellent crimes interfere with rational deliberation. There is some truth to the notion that heinous murders and other shocking crimes place an enormous strain on the criminal justice system, and may exert a destructive influence on institutional process. Nevertheless, the argument that strong emotion interferes with rational deliberation begs the question: what is rational deliberation? This article argues for an understanding of rational deliberation that recognizes its pervasive emotional content. It suggests that the legal system operates on certain misconceptions about emotion that are themselves harmful to institutional process. The most pervasive misconception is that the very attempt to address emotion is destabilizing to the rule of law. Though the legal system rarely incorporates scientific or social-scientific knowledge of emotional dynamics, it nevertheless operates on its own assumptions about how emotions work. It tends to take three approaches to emotion: requiring it to be to be "set aside" (e.g. the anti-sympathy instruction); permitting it to be "introduced," (e.g. the victim impact statement) and ignoring it (e.g. the refusal to clarify the meaning of life without parole despite evidence that juries misunderstand the term and that clarifying it will affect their sentencing decisions).

I will argue that the legal approach to emotion and rationality is based on three primary misconceptions about the nature of emotion: 1) that emotions are tangible objects with an identity independent of the person they are in, or the institutional context in which they occur; 2) that emotions are private and internal feelings, rather than processes that take shape in a social world; and 3) that emotions are bursts of uncontrollable passion that short-circuit rational deliberation. Using the example of capital punishment, the article illustrates that these misconceptions have serious consequences for the structure and functioning of the capital system.

Full post as published by Legal Theory Blog on November 21, 2008 (boomark / email).