Academic

Markel on Retributivism

By Lawrence Solum

Dan Markel (Florida State University College of Law) has posted Executing Retributivism on SSRN. Here is 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, consistency with Panetti necessitates substantial revision to, among other things, the judicial treatment of claims of actual innocence, the warehousing of mentally ill persons in prisons, and 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.

Very interesting & highly recommended.

Full post as published by Legal Theory Blog on September 08, 2008 (boomark / email).