To illustrate their point, Berman and Bibas point to the debate in current death penalty litigation and examine the emotions of those who favor the death penalty and those who oppose capital punishment.  For the victims, the retributive value of punishment is key.  A victim is more likely to believe that "as I suffered, let the guilty party suffer," than he is likely to care if punishment will deter the offender in the future.  For death penalty opponents however, the emotional guilt associated with convicting the innocent compels them to speak out against the death penalty.  Opposition arguments are supported not by human emotion, but by studies that support the general proposition that the death penalty does not deter and is too expensive.

What appears to be missing from Berman and Bibas' article is any strong argument that capital punishment is, at its core, meant to be a punishment.  And, punishment, the idea of amending a wrong, is precisely why emotion plays such a large part in our criminal justice system.  If the emotions of victim suffering and unjust harm did not play into our process, then there would be little justification of sentencing the condemned to death. 

For example, if the death penalty were meant to teach the condemned that his action was socially unacceptable, then there are better methods to teach than through the finality of death.  As Berman and Bibas point out, death "cannot communicate to the uncomprehending criminal the emotional outrage and wrongness of his deed."  If instruction on society's values were the ultimate goal, punishment would offer the convicted a chance to show he had learned from his punishment - the punishment would not take his life without an opportunity to show his reform.

But this is precisely what we have chosen to do.  Through punishment we reinforce society's values and instruct others on what will and will not be tolerated, and, at the same time we fulfill our own need to avenge crimes we find morally reprehensible.  It is not that society believes that we cannot find redeeming qualities in the condemned, it is that we fear that if his actions are not punished we will become his victim later on.  While this is purely selfish justification for imposing capital punishment, it is a justification that cannot be easily ignored.  While we would all like to believe we are not violent individuals, we also know that given the worst of circumstances, passivity may not be an option.  As Berman and Bibas write: "Punishment channels retributive anger, limiting it to proportional payback and tempering it with neutral adjudicators and punishers.  If one squelches the impulse rather than channeling it, people may take the law into their own hands."  Remember John Grisham's book A Time to Kill.

This is why Berman and Bibas were correct to recognize a strong emotional case for capital punishment in child rape cases.  In cases of child rape, not only is the victim robbed of innocence and a concept of safety, but, the harm must be endured by the child and those responsible for the child for the rest of the victim's life.  The death penalty could fill the emotional void by letting the victim know he "need never fear that [his] accuser[] will repeat or keep exploiting [his] trauma." 

It is human nature to fear and it is human nature to seek to alleviate the fear by eliminating the threat.  We do not execute to teach, we execute to punish.  It is through punishment that we hope to eliminate threats to our safety.  It is not wrong to let emotions guide our choices in punishment - especially when our criminal justice system makes many allowances for the defendant during trial and allows the defense to play on the sympathies of the jury during sentencing.