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April 24, 2018

"All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty"

The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is its abstract:

In Courting Death: The Supreme Court and Capital Punishment, Carol Steiker and Jordan Steiker offer a richly textured and fair-minded account of the fraught relationship between capital punishment and the United States Supreme Court.  As the book convincingly illustrates, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory. Although the book is clear-eyed and appropriately unsentimental, the authors hold out hope that a principled capital jurisprudence is possible.  They seek to distinguish the factors that ought to animate the Court’s jurisprudence from those that are illegitimate.

This review of Courting Death proceeds in three parts.  Part I describes the book’s main arguments. Part II explores the limits of employing legal doctrinal tools to shed light on the forces that shape and sustain capital punishment in the United States. In particular, it explores the implicit question underlying the Steikers’ critique: is there a path toward a principled capital jurisprudence?  Part III focuses on so-called “expressive” theories of punishment, which emphasize the symbolic, communicative importance of the death penalty. It argues that expressive punishment theory has become a grab bag of poorly differentiated concepts that too often obfuscate rather than illuminate the death penalty debate.  It then returns to the topic of Part II, exploring the difficulty of distinguishing “off-limits” or “extra-legal” political and emotional influences from appropriate legal influences on the death penalty debate.  The review concludes that once all these arguably illegitimate influences are stripped away, a coherent, principled doctrinal capital punishment doctrine is not possible.

April 24, 2018 at 08:29 PM | Permalink


The Steikers "fair minded" on the death penalty?

It would be a, remarkable, first.

For example:

Carol Steiker & Jordan Steiker: Anti Death Penalty Nonsense

Posted by: Dudley Sharp | Apr 26, 2018 7:14:48 AM

Little Dudù likes to kill people.

Posted by: Claudio Giusti | Apr 27, 2018 7:52:45 AM

What is the death penalty for?
If the death penalty is good for something, why civilized world left it decades, when not centuries ago? and why only the United States is using it?
And, if capital punishment satisfies any undeniable social or moral purposes, why right in the United States we find the most ancient abolitionist jurisdiction? And why in the very America there are other eleven states which abandoned it decades, when not centuries ago?
And why, if capital punishment is such an unquestionable instrument of justice, it is restricted in a very little number of American states and counties?
So, at the very end the question is this: Why there is still the death penalty in the United States and how is this justified?

Posted by: Claudio Giusti | Apr 27, 2018 7:59:29 AM

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