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June 4, 2008

Reflections on reflections on emotions and the death penalty

As detailed in this post, Stephanos Bibas and I have a new commentary (now available here at SSRN) titled "Engaging Capital Emotions."  In addition to comments here from usual SL&P suspects, Corey Yung at Sex Crimes provides these intriguing (and kind) reactions to our commentary.  Here are excerpts:

I've just finished reading the draft and I highly recommend checking it out.  My initial thoughts are the emotion/rational divide basically mirrors (or is the same as) the retribution/deterrence divide. Since retribution is often explained not in its arcane philosophical terms, but instead in terms of payback, it fits neatly with emotions. Someone being punished fulfills an emotional need that is basically retribution. Deterrence theories, on the other hand, are, with regularity, theoretically and empirically grounded. Deterrence arguments fit the "rational" label.

I strongly agree with B&B that emotions are unavoidable in discussions of criminal sentencing. I think this is particularly the case when sex offenders are involved. I'm less convinced concerning the normative argument that emotions serve a net positive role in sentencing debates.  As my previous responses to Berman's posts about Kennedy illustrate, I'm tentatively a deterrence-oriented scholar concerning sentencing policy. If a law doesn't serve a net utilitarian/deterrence function, it should not be adopted. Retribution is too abstract and sometimes counter-productive (from a utilitarian perspective) to fully inform policy.  So, in the Kennedy case, I think the normative argument for emotion assumes that retribution should be the controlling theory.  Perhaps deterrence factors in the background, but emotion should be the lodestar for debate. While I think descriptively, this claim is probably true, I disagree with B&B that emotion should be central.  To do so risks the negative utilitarian consequences that I and others have articulated in response to the Louisiana capital rape statute (which Berman has, to his credit, argued against in other forums).

In my view, connecting the emotion/rational divide to the retribution/deterrence divide is insightful, but incomplete.  I personally think there is and should be some rationality in retribution and also that there is and must be some emotion in deterrence. 

Moreover, to go a bit meta, I often notice a lot of emotion in the way in which supposedly "rational" scholars examine and debate deterrence in the context of the death penalty.  In the Kennedy context, I am yet to see a truly sober and meticulous analysis of whether capital child rape could be reasonably expected to serve utilitarian interests.  Rather, in many critiques of capital child rape, we get what seem to me to be emotion-driven and highly-questionable assertions that there will be negative consequences from allowing child rape to be a death-eligible crime.

To go even more meta, I think Corey's points strike to the core of what I consider one of the hardest conceptual challenges of utilitarian theory that arises in a lot of punishment settings: it is a legitimate good with a place in the utilitarian calculus if people feel good about making others feel bad?  I sense that some (many?) citizens feel good emotionally knowing that society will threaten to sentence some child rapists to death.  Most utilitarians (myself included) have never quite been sure about whether and how these feelings ought to enter into a utilitarian calculus.

June 4, 2008 at 09:56 AM | Permalink


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Tracked on Jun 4, 2008 10:22:59 PM


Are you sure this is accurate, Doug: "I am yet to see a truly sober and meticulous analysis of whether capital child rape could be reasonably expected to serve utilitarian interests." I have. See e.g., the amici referenced here or the stated reasons for opposition to the death penalty for child rape by a Texas victim rights group.

I've seen you dismiss such arguments out of hand, as you do here, but that doesn't mean they haven't been made or that they're driven by emotion.

Posted by: Gritsforbreakfast | Jun 4, 2008 10:30:04 AM

It is an interesting and thought provoking paper. First thought, if the death penalty is a means to vent raw emotion and inhibit vengefulness, then why do so many other "civilized" countries without the death penalty have lower murder and crime rates?

"A significant predictor of a death sentence is whether
a killer expresses remorse and seems sorry. Is the
killer someone with normal human emotions, who feels
guilt and the pangs of regret at his awful misdeed?" p 6.

This may in part be true, or it may in part be atavistic remains of the Inquisition. How many who are remorseful are spared the death sentence? Remember, confession was only the good excuse for execution.

"Or is he a stony-hearted monster who deserves
outrage, not mercy? These classic jury questions
drip with emotion."

Or is it the normal contempt we have to anyone who holds us in contempt? This is true even in non-criminal situations. We hold arrogance and hubris in contempt. While it is true some murderers may feel nothing, how can we be sure the present one is in that category? Maybe this one is so on verge of a nervous breakdown the only way to hold himself together is a stone face. For example, what other options would an innocent defendant have? Some commentators say Scott Peterson was found guilty and sentenced to death not because the evidence was strong, but because the jury judged his personality. Just because there is reason for strong emotions against someone who might have killed his wife and unborn child, that doesn't ensure those strong emotions, when it comes to judging evidence, are the correct emotions for the situation.

I think, maybe, Professor, this story and your post on it inspired your quest into the mystery of emotion. Rightfully so, but look what you did with that emotion. You thought about it, wrote about it and came to terms with it. But there's the flaw, by citing the quote in that story in your paper you also tacitly cite the discredited study also quoted there. That's OK since it serves it emotional purpose. Or is it?

"Executing Adolf Eichmann was hardly necessary to incapacitate or
deter him, but it was essential to condemn the Holocaust and
vindicate its victims." p 8

Even if it is true the execution of Eichmann was "essential" to "vindicate" his victims, the paper ignores the emotions that brought Hitler to power and drove the Holocaust in the first place.

But I admit to being emotional about laws based on false but emotionally effective studies and propaganda, be it the war on drugs, pit bulls or justifying virtual tattoos in the form of a registry. With the passing of each slippery slope day that emotion is evolving into literal concentration camps via banishment.

The Furies were calmed by bestowing on them honor and respect, a goal no one can argue with. The Furies today demand much more than that.

Posted by: George | Jun 4, 2008 11:22:07 AM

It is curious that lawyers talk about the death “penalty”.

Penalties are fixed before the fact and imposed after the fact. People are penalized for committing crimes. Penalties are mandatory, because their credibility would be lost otherwise. Emotions play no role in the decision to penalize; reason carries the day.

Punishments are imposed after the fact within a range that is established before the fact. People are punished for committing criminal offenses. Punishments have to be discretionary within a range, because their penumbral attributes are unknowable before the fact; e.g., harm caused, nature of victim, role of co-offenders and so on. Punishment decisions are intuitive, not reasoned. For example, if we think of murder as a crime, all murders are the same, because they have the same elements. If we think of murder as a criminal offense, all murders differ in some respects. In a sentencing system, we should think of murder in both ways and respond accordingly.

Lawyers have great difficulty with this distinction. But cognitive scientists sorted this out years ago. Steven Pinker has an interesting chapter in his book, Words and Rules. It is entitled “Digital Mind In An Analog World.” He talks about the difference between classical, Aristotelian concepts like “crime” and penumbral concepts like “offense”, although he uses different examples. With tongue in cheek, we might say that most lawyers have digital minds in an analog world, to paraphrase Pinker. But your paper suggests that this may be changing. Clearly, emotions are indispensible when making punishment decisions.

Posted by: Tom McGee | Jun 4, 2008 4:35:28 PM

Grits, I see many problems with the brief you cite:

1. There is no examination on whether making child rape death eligible might increase how many of these cases get resolved by pleas and thereby spare child victims the harms of a trial.

2. The assertion that capital child rape will increase incentives to kill victims completely misses the reality that rape/killers will get DP more often than just rapists (and is, in a sense, inconsistent with the assertion that capital child rape will lead to less reporting).

3. The brief says that there is "little or no doubt that Louisiana’s statute will, perversely, increase the trauma suffered by the victims of child rape." Similarly, the brief asserts that capital child rape will "almost certainly" increase the amount of child sexual abuse and place child victims at greater risk of murder, and increase the trauma that such victims suffer. If these reality are so "certain" and without much doubt, why aren't people voting supporters of these laws out of office?

In sum, we see lots of bald assertions in this brief, not a truly sober and meticulous analysis of what might really happen.

This is especially troublesome, since capital child rape has been ont he books for more than a decade in Louisiana and for a number of years in other states. Couldn't the brief writers have examined whether their assertions have any basis in fact? Is there more child sexual abuse and more victims killed and more trauma suffered in Louisiana over the last decade? And even if there is some evidence, shouldn't this be presented to the LA legislature to encourage a better policy rather than to encourage the Supreme Court to prevent LA for continuing with the policies it has adopted?

Posted by: Doug B. | Jun 4, 2008 7:36:50 PM

Doug, to get a handle on the differences between intuition (punishments) and reason (penalties), you might want to check out Daniel Kahneman’s 2002 Nobel Prize Lecture.

We have emotions because they are evolutionarily advantageous, which means they must be advantageous more often then not. Of course, anger is indispensible when making punishment decisions. We punish people because it is evolutionarily advantageous, again more often then not.

That being the case, do we really want to kill people for punishment purposes? I don’t think so.

Posted by: Tom McGee | Jun 5, 2008 12:08:23 PM

I need to clarify my comment. How do we measure collective emotion when it comes to the terrible crimes of child abuse? Two cases give us some good opportunities. Three, actually. If every child rapist was sure to be a Joseph Duncan there would be a good argument for the death penalty on the first offense no matter what it is, but Duncan is a serial killer. Two other cases help us measure the nation's collective emotions in less clear-cut cases. The nation sighed a collective sigh of relief and jubilation when Elizabeth Short was found alive and "unharmed." Compare that to the collective anguish and rage when Jessica Lunsford was found dead.

Therefore, the nation does not emotionally equate the two crimes and it logically follows that the punishments should not be equal. But it's even more complex than that. The emotional follow-up was the Adam Walsh Act and Jessica's Law, neither of which would have prevented the Short kidnapping or protected her. Does that make the laws emotionally flawed? The Jessica Lunsford case is even more complex. John Couey apparently did not kidnap with the intent to kill, but killed only to avoid detection so he could make an escape. Since he did not face the death penalty until he killed, would the death penalty make any difference in motivation to kill in other potential cases?

All I know is that, like the rest of the country, given the two evils, I prefer the Elizabeth Short outcome to the Jessica Lunsford outcome and do not equate a "murdered soul" with a murdered child. The collective emotional reactions to both cases supports the premise that the nation agrees. The question is if emotional laws lead to the unintended consequences of one outcome more than the other, and only a rational law not too clouded with emotion can help us accomplish what we want laws to accomplish. Which side of the equation is the death penalty for child rape on? Until we know, we can't know if it is a good law or not.

Add to that the emotional damage to a child the death penalty may incur on some children and it becomes fairly clear, at least to me, that we can't let emotions, as justified as they are, interfere too much with rational analysis. That analysis must be enough to insure we don't do more harm that good, like, for example, the residency restrictions that are emotionally charged and justified but logically flawed. The potential consequences are of course far more severe when it comes to life and death of a potential child victim or the perpetrator.

Therefore, we have to acknowledge that sometimes emotion-driven laws actually make society less safe, which may be the ultimate lesson of the Holocaust.

Posted by: George | Jun 5, 2008 1:14:07 PM

Emotion response and critical, rational thinking are not mutually exclusive.

Our thoughts and considerations can, quite easily, tolerate and embrace both. We are human and both are human traits.

My original thinking on the death penalty for chld rape was to be opposed to it. I believ in the deterrent effect of death penalty. I find the evidence solid.

Incentives, positive and negative, matter.

If sanctions for child rape and child rape/murder are the same, then a child rapist has no negative incentive to murder their rape victim. The positive incentive to murder is removal of the victim/witness, depending upon age.

Is there any solid evidence to support my considerations for these incentives for child rapists? Not that I am aware of.

However, if you believe in consideration of incentives, it is something to, at least, consider.

Posted by: Dudley Sharp | Jun 15, 2008 11:48:11 AM

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