Legal Commentary

Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.

Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.