Death Penalty Irrational?
Mark.Scarberry at pepperdine.edu
Thu Aug 9 10:45:54 PDT 2007
Penalties imposed by the government, and other government actions, often
take a form that we would condemn if undertaken by private persons.
Collection of taxes to pay for police protection would be like demands
for protection money. Taxes in general would be theft. Arrests would be
kidnappings. Prolonged incarceration would be a particularly egregious
form of kidnapping. The military draft would be slavery. I am open to
the argument that the death penalty is unjust, but much more needs to be
done than just to say that if a private person did it we would condemn
it. Would Robert argue that we should not imprison kidnappers, because
we would be doing to them what they did to others and thus setting a
poor example? In the criminal sentencing context generally, we take away
many of the convicted criminal's rights at least in part because the
criminal took away the rights of others. This is a kind of corrective
There is a moral difference -- a difference understood by the people --
between a murderer's taking of an innocent life, and the state's taking
of the life of a convicted murderer. Innocence (or its lack) matters,
and so does the difference between what is permissible for the
individual to do and what is permissible for organized society to do.
Mark S. Scarberry
Pepperdine University School of Law
From: Robert Sheridan [mailto:rs at robertsheridan.com]
Sent: Thursday, August 09, 2007 8:40 AM
To: Scarberry, Mark
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Death Penalty Irrational?
I appreciate that since time immemorial many well-intended people have
believed in an eye-for-an-eye and a life for a life, except when it
comes to them. The poetic justice of it all must seem very appealing.
I'm just not sure how rational it is to argue that society may employ
the public taking of life to show its displeasure with the private
taking of life. Why not torture torturers to show our displeasure with
torture? This would fail the Jay Leno test and cause yucks on late nite
TV, something that the law cannot afford.
Justice Brandeis observed that government is the ultimate teacher. What
is it teaching?
Although the law is said to abhor a forfeiture, it seems to love
forfeitures when it comes to the life of a life-taker.
We have so many homicides, and so few death penalties. I wonder whether
the homicide rate would drop if the death penalty rate went up. Surely
there must be an unanswerable study which proves this, given the
fanatical devotion of some to the efficacy of this ultimate remedy.
Very few people have asked whether one believes in the county jail,
perhaps because it would seem silly. Or in state prison. But people
often ask whether one another believes in the death penalty.
I don't even believe in Santa Claus, the gift-bringer, much less the
death penalty as the bringer of justice, law, or order.
On Aug 9, 2007, at 8:05 AM, Scarberry, Mark wrote:
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
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
reason, had persuaded her husband the president to take a
stance, would it be irrational? If a tree falls...
We developed a lot of science out of astrological interest, once
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
our, in law, don't? Why do we keep tripping over the same
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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