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April 8, 2013

"Retribution and Revenge in the Context of Capital Punishment"

The title of this post is the title of this notable new paper I just saw via SSRN. The piece is authored by Robert Schopp, and here is the abstract:

Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge.  These opinions apparently reflect the premise that vengeance is self-evidently evil.  Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate.

This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted.  It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.

April 8, 2013 at 04:43 PM | Permalink

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Comments

Susan Jacoby is a death penalty opponent who has argued (see, e.g., "Wild Justice: The Evolution of Revenge") that "retribution" is a valid purpose of punishment. On how "retribution" and "revenge" (or "vengeance") is not the same thing, see here:

http://cathyyoung.blogspot.com/2005/11/retribution-morality-and-soul.html
http://reason.com/archives/2001/07/01/mcveigh-to-macbeth

I do not share all the opinions of the sources here but do recommend them for their thought provoking analysis.

Posted by: Joe | Apr 8, 2013 6:24:18 PM

Simple Justice has an interesting take on what appears to be a popular subject. I agree with the 450 BC comment.

http://blog.simplejustice.us/2013/04/02/revenge.aspx

Posted by: george | Apr 8, 2013 6:41:28 PM

// McVeigh['s]...own executioners, wrote Semel -- making an argument echoed by a few other commentators -- were simply perpetuating the grisly cycle of hate and revenge. //--Joe's 1st reference

But not an endless cycle; the McVeigh execution seems to have effected an exacting end, no?

Posted by: Adamakis | Apr 8, 2013 9:13:19 PM

The whole quote might warrant notice:

"Writing in the Los Angeles Daily News, Elisabeth Semel, director of the American Bar Association’s Death Penalty Representation Project, saw a special, sinister irony in the case. McVeigh viewed his deed as vengeance for the 1993 deaths of the Branch Davidians in Waco, Texas. His own executioners, wrote Semel -- making an argument echoed by a few other commentators -- were simply perpetuating the grisly cycle of hate and revenge."

As to it being an "endless cycle," who's to know? He justified his violence on account of what he saw as grievous government violence. Others will justify killing for their own causes, the death penalty showing that killing people for the "right" reasons or for "justice" is on some level legitimate. He died a martyr to some, and I'm not talking about death penalty abolitionists here.

The cycle also continues with new murders leading to new executions.

Posted by: Joe | Apr 8, 2013 9:30:04 PM

Joe --

You take moral equivalence to a new and absurd extreme.

The 80% of the public who approved of McVeigh's execution were not in the same moral category as he, a fact you surely know.

If McVeigh thought he was acting to achieve vengeance, did he ever ask what part of the law or the social contract commissioned him, in particular, to make that judgment and carry it out?

Sure he did.

Not that I'm buying McVeigh's story in any event, as you fecklessly do. Have you ever considered that a person who would blow toddlers to kingdom come might, ya know, lie? Have you ever considered the possibility that he just enjoyed killing, but that concocting a story abut "revenge" makes him look "better?"

The idea that the huge majority of the American public is on the same level as McVeigh is even more insulting than it is false. The self-appropriated, repugnant and incredibly arrogant superiority of abolitionism has seldom been on better display than in your comment.

Posted by: Bill Otis | Apr 8, 2013 10:36:59 PM

Don't know what sort of "moral equivalence" I'm stating here, much of it just citing the arguments set forth by others.

I don't know what the "same" moral category means exactly. There are levels of wrong. A blow and a murder both on some level might be wrongful violence. Not quite "same" though. The idea there is that execution might be as would now torture is -- torture is illegal no matter who does it. Even then, a criminal torturing a child would not be on the 'same level' in various ways than a sheriff waterboarding a suspect.

I said he "justified" his actions in such and such a way, so if you want to label me "feckless," it might be helpful to be careful in the application. I don't know what went on in his heart. There are people out there who murder out of some misguided belief of justice. Those who, e.g., kill doctors, probably in some cases at least didn't do it merely for the thrill.

I provided links where even a secularist death penalty abolitionist supports retributive punishments, but still, there is a need to exaggerate to show the alleged "arrogant superiority" of one side. The term "abolitionist" as an epithet btw didn't impress some in the antebellum times, nor does it now really.

Posted by: Joe | Apr 9, 2013 1:31:44 PM

Joe --

"Don't know what sort of "moral equivalence" I'm stating here..."

It's real easy to figure out. Just read your own words.

"I don't know what the "same" moral category means exactly."

Sure you do. As you were saying, McVeigh killed for revenge, and he was also executed for revenge. That's the same moral category, as you full well knew and intended when you typed it.

"I said he 'justified' his actions in such and such a way, so if you want to label me 'feckless,' it might be helpful to be careful in the application."

When you take McViegh's stated "justifications" at face value, "feckless" is the most charitable word I could think of.

"The term 'abolitionist' as an epithet btw didn't impress some in the antebellum times, nor does it now really."

And there you go again. No moral person who comments on this forum supports slavery, but many moral people who comment on it support the death penalty, which, unlike slavery, is the law among the great majority of states.

I'll just put it to you straight: Do you think death penalty abolitionists are, by virtue of that belief, more moral than death penalty retentionists?

Yes or no. We'll see who's arrogant.

Posted by: Bill Otis | Apr 9, 2013 2:19:29 PM

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