CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 19, 2018

McLeod on The Death Penalty as Incapacitation

Mcleod marahMarah McLeod (Notre Dame Law School) has posted The Death Penalty as Incapacitation on SSRN. Here is the abstract:
 
Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime. How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary. Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint.
Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time. This Article urges two reforms in light of the history, influence, and normative import of the incapacitation rationale. First, states should no longer ask juries to determine desert and future dangerousness at the same time, because this may lead to death sentences that are not deserved. Desert must be established first. Second, states should embrace future dangerousness, not as a sufficient reason for execution, but as a precondition for it. A death penalty premised both on moral desert and the risk of future violence would be less arbitrary, less frequent, and more defensible.

http://lawprofessors.typepad.com/crimprof_blog/2018/03/mcleod-on-the-death-penalty-as-incapacitation.html

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