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April 10, 2014

"Death Delayed Is Retribution Denied"

The title of this post is the title of this notable new article by Russell Christopher now available via SSRN. Here is the abstract:

Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended?  Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive.  Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from.  Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment.  Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional.

Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism.  Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.

April 10, 2014 at 09:29 AM | Permalink


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Interesting perspective.

I glanced at the article -- which is more than many do in these cases let's be honest -- and it is a bit hard going. In effect, we have to weigh various factors that do not seem easily broken down into hard and fast numbers.

And, there are various arguments as to what "retribution" should entail plus it isn't the only concern here anyway. First, as theorists and case law provides, punishment involves various things other than retribution. Second, our system of justice does too. Thus, e.g., some time -- as compared to the past where a person can be executed within a year of the murder -- is necessary to protect current principles of due process.

But, long stays on death row can be attacked in various ways, and the mode of that article is a useful addition to the conversation.

Posted by: Joe | Apr 10, 2014 11:02:08 AM

// Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive.\\

----------........... Well then most lack a moral compass, and love for victims?

Extended death row incarceration is the unfortunate result of the entertaining of irrelevant appeals and unnecessary delays,
by jurists deficient in something critical.

[The deficit could be of morality, common sense, or competence, I posit.]

Posted by: Adamakis | Apr 10, 2014 4:04:14 PM

Death delayed is worth $multi-billions to the death penalty appellate business. No change in the foreseeable future, until a movement begins to arrest, try and execute the lawyer hierarchy extracting this money from the taxpayer at the point of a gun. Executing all of them has the same moral value and urgency as arresting trying and executing the Mafia if has taken over a town. The difference, the criminal cult enterprise that is the lawyer profession has fully infiltrated the three branches of government. Not the corruption of government, but the total command of the government has been achieved by this criminal enterprise. I cannot advocate violent revolution because of the risks of such. Even if another 9/11 takes place, nothing will be done to these traitors, as not even one of them was forced to resign, let alone be executed for treason, the first time around.

So there is no recourse. Zero. The public is fucked, truly, totally, permanently.

Posted by: Supremacy Claus | Apr 10, 2014 11:11:57 PM

If someone sentenced to death is truly guilty and evil then it seems to me that the delay punishes him more. The delay also gives us on the outside time to see if perhaps he was not guilty. Then we are all not guilty of violating the Sixth Commandment. If the evil person finally gets executed the only thing lost is money. All the money it took to feed, house, guard, the evil one all that time.

Posted by: Liberty1st | Apr 12, 2014 9:29:56 PM

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