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American University Law Review Volume 64 Issue 6 Article 2 2015 Why Capital Punishment is No Punishment At All Jason Iuliano Villanova University, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/aulr Part of the Criminal Law Commons Recommended Citation Iuliano, Jason (2015) "Why Capital Punishment is No Punishment At All," American University Law Review: Vol. 64 : Iss. 6 , Article 2. Available at: https://digitalcommons.wcl.american.edu/aulr/vol64/iss6/2 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Why Capital Punishment is No Punishment At All Abstract 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. This article is available in American University Law Review: https://digitalcommons.wcl.american.edu/aulr/vol64/ iss6/2 WHY CAPITAL PUNISHMENT IS NO PUNISHMENT AT ALL JASON IULIANO* Capitalpunishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capitalpunishment 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. Capitalpunishment 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 regardingdeath, 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, situationsin which it is not, and capitalpunishment, 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 constitutionalobjection to the practice. TABLE OF CONTENTS In troduction ...................................................................................... 1377 I. Legal Justifications for the Death Penalty ............................. 1379 A . D eterrence .......................................................................... 1382 B . R etribu tion ......................................................................... 1394 II. Capital Punishment is Not a Punishment ............................. 1403 A. Capital Punishment is Not Intrinsically Bad ..................... 1406 * Ph.D. candidate in Politics, Princeton UniversitfJ.D., HarvardLaw School Thanks to Madison Kilbride and Sarah McGrath for their valuable comments on this Article. 1377 1378 AMERICAN UNIVERSITY LAW REVIEW [Vol. 64:1377 B. Capital Punishment is Not Instrumentally Bad ................ 1411 1. The perception problem ........................................... 1412 2. The tim ing puzzle ...................................................... 1418 3. The symm etry argum ent ............................................ 1423 C. Capital Punishment is Not Comparatively Bad ................ 1428 1. Life without parole means life without parole ......... 1431 2. Why life without parole is worse than death ............. 1434 C on clusion ........................................................................................ 144 1 INTRODUCTION The death penalty is the worst punishment society can inflict upon one of its members. It is the most powerful act of reprobation-the ultimate sign of condemnation for a fellow human. Politicians have declared it.' Scholars have affirmed it.2 Even the United States Supreme Court has held it to be true.' The claim that death is the ultimate sanction has been repeated so frequently that most simply accept it without question.4 In this Article, however, I ask whether such acceptance is warranted. My investigation leads me to conclude that it is not. In the U.S. criminal justice system, capital punishment is not actually a punishment. As unintuitive as this claim sounds, the Supreme Court's theory of punishment supports this conclusion. The particular theory endorsed by the Court is known as retribution, and one of its core principles is that, for something to be a punishment, it must be bad, in some way, for the one who is 1. See, e.g., George Ryan, Governor of Ill., Speech at Northwestern University College of Law (Jan. 11, 2003), http://www.nytimes.com/2003/01/11/national/ I ICND-RTEX.html (calling capital punishment "the most severe sanction"). 2. See, e.g., Rachel E. Barkow, The Court of Life and Death: The Two Tracks of ConstitutionalSentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1201 (2009) (calling the death penalty "the most severe punishment"); Stephen B. Bright, Counselfor the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1837 (1994) (declaring the death penalty "society's ultimate punishment"); Ernest van den Haag, The Ultimate Punishment: A Defense, 99 HARV. L. REv. 1662, 1662 (1986) (referring to the death penalty as "our harshest punishment"). 3. See, e.g., Hall v. Florida, 134 S. Ct. 1986, 2001 (2014) ("The death penalty is the gravest sentence our society may impose."); Roper v. Simmons, 543 U.S. 551, 568 (2005) (noting that "the death penalty is the most severe punishment" (citing Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) (O'Connor, J., concurring) (plurality opinion))); Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring) (per curiam) (explaining that society views death as "the ultimate sanction"). 4. See infra notes 149-51 and accompanying text. 2015] WHY CAPITAL PUNISHMENT IS No PUNISHMENT AT ALL 1379 punished.' I argue that the death penalty does not actually meet this criterion. As practiced in the United States, the death penalty is not bad, in any way, for the executed individual.' My argument obviously raises the question of what it means for something to be bad. In answering this, I endorse a widely accepted philosophical theory of harm. Specifically, this theory holds that there are three types of harms: (1) intrinsic harms, (2) instrumental harms, and (3) comparative harms. In this Article, I examine each category and explain why the death penalty does not qualify for any of them. My arguments are firmly grounded in the philosophical debate surrounding the badness of death.7 The overwhelming majority of philosophers engaged in this debate believe that, in some circumstances, death is not bad. In this Article, I argue that the death penalty is one of these circumstances. If I am correct that the death penalty is not a punishment within the Supreme Court's theory of retribution, then the practice has no place in our criminal justice system, and its continued use is constitutionally problematic. Specifically, it is a violation of the Eighth Amendment's proportionality requirement. In Part I of this Article, I discuss the Supreme Court's two legal justifications for the death penalty--deterrence and retribution. I begin by reviewing the empirical literature on the deterrent effects of the death penalty and showing that this rationale lacks sufficient support to provide a constitutional basis for the punishment. Next, I examine the Court's theory of retribution. In Part II, I investigate whether that theory can provide a constitutional justification for the death penalty. Ultimately, I conclude that it cannot. Because the death penalty is not bad for the executed individual, it is not a punishment within the Court' s understanding of the term. I. LEGAL JUSTIFICATIONS FOR THE DEATH PENALTY Between 1775 and 1974, more than thirteen thousand people were put to death in the United States.8 During this period, the Supreme 5. See infra Part I.B. There are additional
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