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June 17, 2008

Final version of "Engaging Capital Emotions"

The Supreme Court should soon hand down its opinion about the constitutionality of capital child rape laws.  While we wait, readers are welcome to check out the finalized version of the commentary Stephanos Bibas and I put together, titled "Engaging Capital Emotions," which is already in print here as at the Northwestern University Law Review Colloquy.  Helped by the Colloquy's terrific editorial team, we have refined a few points from our first drat and added this conclusion: 

Emotions can evolve and be informed. Some opponents contend that capital-child-rape laws will harm child-rape victims and their families. If so, this harm will undercut the sympathy and empathy that drive these laws, leading legislators to pull back.  As our discussion highlights, democratic processes engage capital emotions effectively in deciding which crimes are eligible for the death penalty.  Thus, unelected judges should be wary of stifling a healthy, democratic national dialogue that can air and develop capital emotions.

Cool, somber courtrooms can seem hostile to emotional expression. But, especially in criminal justice, we must neither forget nor disdain seething passion. Especially where those passions are most intense, in capital cases, lawyers and scholars ought to combine doctrinal analysis with sensitivity to emotion.

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June 17, 2008 at 07:35 AM | Permalink


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Tracked on Jun 17, 2008 8:46:11 AM

» Engaging Capital Emotions from Sex Crimes
As noted on Sentencing Law Policy, Berman and Bibas have posted the final version of their interesting article about capital punishment. The paper uses Kennedy v. Louisiana as a focal point and I previously posted about the article in its [Read More]

Tracked on Jun 18, 2008 11:17:59 PM


Good paper and maybe it's the second reading, or maybe it's the revision, or both, but the paper is more compelling now, though I still say the emotional consequences of child porn victims would be stronger from an actual victim rather than second hand from an FBI agent with a potential agenda.

Friedman devotes some pages to executions in his Crime and Punishment in American History. He writes: "Executions still fascinated the public [in the 19th century.] Public executions, where they existed, were a tremendous box-office hits." (p 168)

Two questions:

1. Is the emotional purging or catharsis possible with private and sanitized executions, or do they have to be public to accomplish that goal?

2. Would a swift execution of John Couey have satisfied Mark Lunsford? No one can doubt if his emotions were justified and the entire country experienced it to a degree. Since so many laws are named after a murder victim, I propose an emotional thought experiment.

Line up every sex offender in the country. Mark Lunsford and Chris Hansen walk down the line and Mr. Lunsford accuses each to his face of being a John Couey. It's televised on live TV.

Assuming only Chris Hansen is dispassionate and objective, leaving the triangle of Lunsford, offender and audience, what are the emotions?

Posted by: George | Jun 17, 2008 1:12:32 PM

Ahh -- the market system does executions! Great idea, guys. Or is it just a feeling?

By the way, in order to really claim what you do in your conclusion, you'd need to include the media and their portrayal of state killings in your analysis.

Posted by: txjeansguy | Jun 18, 2008 8:28:45 PM

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