Tuesday, April 9, 2013
Robert F. Schopp (University of Nebraska at Lincoln - College of Law) has posted Retribution and Revenge in the Context of Capital Punishment on SSRN. Here is the abstract:
Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge. These opinions apparently reflect the premise that vengeance is self-evidently evil. Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate. This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted. It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.