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August 20, 2008

Do special procedures help preserve the US death penalty?

I just came across on SSRN this interesting-looking paper by William Berry, titled "American Procedural Exceptionalism: A Deterrent or Catalyst for Death Penalty Abolition?".  Here is the abstract:

This article offers a new theory to explain the persistence of the death penalty in the United States at a time when most western nations have abolished it.  Contrary to cultural explanations that have been advanced by other scholars, this piece hypothesizes that the retention is best explained by "American procedural exceptionalism," defined as the unique American belief in the efficacy and fairness of its legal process. This American exceptionalism of process validates the expression of the impulse toward retribution commonly found in western nations. In other words, the perceived fairness of the process affirms the retributive notion that the execution of a murderer achieves justice for society.

When the American death penalty process is shown to be unjust, arbitrary, or discriminatory in its administration, the defect in the process serves as a check on the retributive impulse. The result is a move to halt (or reduce) the use of the death penalty.  Thus, according to the theory, the retention and continued administration of the death penalty in the United States rests upon a belief in the fairness of the American judicial process in capital punishment cases.

August 20, 2008 at 07:10 AM | Permalink


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That is what I have been saying all along.

Posted by: S.cotus | Aug 20, 2008 8:20:24 AM

In other words, people are too naive to believe that the legal system is unjust? I don't know if this theory holds much water, seems to be that people believe in consequences in America, to an extreme.

Posted by: joe | Aug 20, 2008 9:13:04 AM

I think there is some truth to this line of thinking. After all, we primarily define democracy as procedural in nature, much of a court case is consumed by procedural arguments, etc. I think it is beyond dispute that when we abandoned the British Monarchy the totem of legitimacy had to shift somewhere and that somewhere has been the notion of process and procedure. Louis Menand makes this argument quite forcefully in his book, "The Metaphysical Club" where he argues that this shift of legitimacy from "who" to "how" was one of the pragmatic consequences of America's embrace of the scientific revolution in general and Darwinian evolution in particular. Indeed, look at the 5th Circuit opinion from yesterday. It is striking how much of that opinion was consumed by dealing with procedural matters and the issue of substantive reasonableness was almost an after thought.

Having said that, I think this line of thinking does not explain all. For example, as recent postings here have illustrated, the penalty for sex crimes is much much lower in Europe than in America even though those courts have to a large extent adopted the scientific and social rationales for such laws. Such a discrepancy can't be solely explained by the notion of "American exceptonalism". There are other historical and cultural factors are work that tend to distract Europeans and Americans on the topic of the death penalty.

Posted by: Daniel | Aug 20, 2008 11:10:45 AM

Indeed, focusing on the "how" rather than the "who" is, by definition, the way we endeavor to be a nation of laws, not men. This is generally thought to be a good thing. Of course, this puts a premium on the rules themselves, making the never-ending attempts to circumvent them particularly dangerous (e.g., attacks on the exclusionary rule, the expansion of immunity, and even so-called "harmless error").

Posted by: | Aug 20, 2008 2:13:04 PM

Ha ha. Where do people get that “nation of laws, not men” crap from? Public high school civics?

Whether we like it or not, any form of government relies is of, by, and for men and (some) women. “Laws” are a grammar and a system means communicating and codifying norms.

Posted by: S.cute.us | Aug 20, 2008 2:25:42 PM

S.cute.us, please expand a little on your notion that "laws are a grammar."

Posted by: Tom McGee | Aug 20, 2008 5:08:45 PM


LOL. And I see the exact opposite problem. Beyond the issue that human laws are always and inevitably expressions of men, the danger of shifting the totem from who to how is that we fetishize, even idolize, the how. Just as the laws of evolution themselves are in the process of evolution, the process of the law is itself in process. The constitution was deigned to be a living document, not in the sense of judicial interpretation but in the sense of democratic revision. That is why the constitution contains within it a mechanism for its own revision. Regrettably, in our day and age the idea of democratically revising the constitution has become culturally heinous.

The real advantage of instilling legitimacy in a person is that the person will eventually die, or can be killed. But when an idea becomes fetishized and takes root in a culturally moribund society, it can impose a social and moral despotism far worse than any priest or king.

Posted by: Daniel | Aug 20, 2008 5:12:04 PM

Daniel ...

LOL, right back to ya.

Posted by: | Aug 20, 2008 7:48:18 PM


“Law as grammar” is basically the postmodernist-type position that substantive law, itself, doesn’t have any external meaning except as a way to communicate political beliefs.

So, for example, the “rule against perpetuities” (to use a term that nobody on here is going to feel too passionate about) is really a shorthand for one political resulted reached many years ago. Should someone make a RAP argument in court today, whether the court would accept it or not would is not clear (assuming that there ambiguous facts and a non-frivolous position), but the answer WOULD come in the form of the language of property and the RAP.

Posted by: S.cute.us | Aug 21, 2008 4:39:35 PM

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