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Univ. of San Diego School of Law

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Thursday, March 28, 2013

Yin on the Death Penalty Spectacle

Yin tungTung Yin (Lewis & Clark Law School) has posted The Death Penalty Spectacle (University of Denver Criminal Law Review, Vol. 3, Spring 2013) on SSRN. Here is the abstract:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject). 

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.”

On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).

There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?

http://lawprofessors.typepad.com/crimprof_blog/2013/03/yin-on-the-death-penalty-spectacle.html

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