Monday, November 2, 2009
Dan Markel (Florida State University College of Law) has published a thoughtful and nuanced article in the Northwestern University Law Review, Executing Retributivism: Panetti and the Future of Eighth Amendment. He argues that the version of retributivism that led to the Court's limits on executing the mentally incompetent have far more extensive implications. Here is an excerpt from the conclusion:
First, because a communicative rationale for retribution is inconsistent with the death penalty for the reasons offered above, the Court ought to realize that its belated but wise embrace of the defendant-
centered goal leaves it with no available conceptual resources upon which to draw in trying to justify continued use of the death penalty. Panetti should augur, in other words, a new period in which the Court’s “execution of retributivism” entails general grounds for optimism among death penalty skeptics.
Second, the Court’s retributivist reasoning in Panetti requires a commitment to punishing only those who are both guilty and presently competent, with punishments that are not excessive to the defendant’s crime and culpability. Together those conditions create a “negative retributivist” set of restraints on the state’s punitive activities such that an offender’s claim of actual innocence, present incompetence, or excessive punishment must be heard with greater sympathy and effect. Importantly, after Panetti, negative retributivism supervenes on all other penal purposes, contrary to the refrain that the Eighth Amendment is indifferent among penal purposes.