Death Penalty Irrational?
Mark.Scarberry at pepperdine.edu
Thu Aug 9 08:05:28 PDT 2007
It's probably not good form to be the first to reply to your own post, but I realized that I needed to say that rationality need not be consequentialist. Even if the death penalty did not deter crime it still could be rational on the view (1) that it is the proper way to express society's condemnation of murder, or (2) that one who has taken another's life intentionally and without justification should not, in justice, be permitted to continue his own life. Consequentialism is not the only legally permissible theory of ethics.
From: Scarberry, Mark
Sent: Thu 8/9/2007 8:05 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Death Penalty Irrational? [Was: Statutory rape in Wisconsin Registration As A Sex Offender: acomment on RS's comment]
I believe there was a recent empirical study that suggested very strongly that the death penalty in fact is a deterrent and that several lives are saved for every convicted murderer who is put to death. That does not settle the question whether the death penalty is constitutional (though the rather clear references to it in the Fifth and Fourteenth Amendments convince me that it cannot be categorically unconstitutional) or whether it is just. But Robert has now stated several times that it is irrational, and I don't think that is the case. Perhaps someone has a cite to the recent study.
From: conlawprof-bounces at lists.ucla.edu on behalf of Robert Sheridan
Sent: Thu 8/9/2007 7:36 AM
To: Howard Schweber
Cc: Rosenthal, Lawrence; Eugene Volokh; Paul Finkelman; CONLAWPROF at lists.ucla.edu
Subject: Re: Statutory rape in Wisconsin Registration As A Sex Offender: acomment on RS's comment
We do prohibit coin-flipping and lot-drawing in jury rooms...
Nancy Reagan was a big fan of horoscopes. If she, for an irrational
reason, had persuaded her husband the president to take a rational
stance, would it be irrational? If a tree falls...
We developed a lot of science out of astrological interest, once we
figured out what we needed to do to get it right.
Have you ever noticed that the scientists and doctors have self-
correcting mechanisms that seem to work a lot of the time, but that
our, in law, don't? Why do we keep tripping over the same stones so
often, to wit the false convictions we read about so frequently?
Is it because courts and legislatures are anything but rational
creatures a good deal of the time?
Why DO we still have the death penalty?
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