Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.
In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.
This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.
Gads, why hasn't the ACLU thought of this? Capital punishment is unconstitutional because being put to death is "no punishment at all"!!!
I am currently a Laurance S. Rockefeller Graduate Prize Fellow at the Center for Human Values and a fifth-year Ph.D. candidate in the Politics Department at Princeton University. My research interests lie in empirical legal studies and constitutional law. My most recent articles are forthcoming in the University of Pennsylvania Law Review and the Vanderbilt Law Review. Other works of mine have appeared in journals such as the Michigan Law Review, the Indiana Law Journal, and the Florida Law Review. Before coming to Princeton, I earned a J.D. from Harvard Law School, where I was a co-founder and editor-in-chief of the Harvard Business Law Review.
"Capital punishment is not at the top of the punishment hierarchy.
In fact, it is no punishment at all. ...for something to qualify as a
punishment, it must be bad, in some way, for the person who is
punished."
Is this a halfwit advocating the total maiming, amputating,
skin-pealing, eye-gouging or disemboweling of capital murderers?
Otherwise, any non-tortuous "punishment" he could pick would
be less fearful than execution, which this probable liar knows.
Or is this a boob proposing that we draw-out the standard
execution process so that it is a slow death?
Otherwise, this is a ploy to rid us of a just punishment for willful
killing.
--- ---
If ever there was self-inflicted intellectual retardation, this is it.
This pretense is the enemy of righteousness,reason,and reality itself.