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Reflections on Capital Punishment: One Side of an Uncompleted Discussion

Published online by Cambridge University Press:  24 April 2015

Mark Tushnet
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Bob Cover's work was, at the end, explicitly concerned with the law as an instrument of violence. Unsurprisingly, then, he addressed himself to the question of capital punishment. Surprisingly, though, he said “I am not an abolitionist” — surprisingly, that is, to those who understood that Cover was a radical in politics and who believed that because one touchstone of contemporary liberalism is opposition to the death penalty, radicals (who are however not liberals, after all) should support abolition of the death penalty. As Avi Soifer said, “We all are the worse for being unable to argue about that issue with Cover, and therefore to learn from him.” In this essay I want to think about why someone who is drawn to Cover's legal thought, as I am, might be inclined to take a similar position to his on the death penalty. I hasten to add, though, that I do not pretend here to represent Cover's thought; I have no idea why he was not an abolitionist, only why I am ambivalent about the death penalty. Nor do I have any reason to believe that the lines of argument that I will sketch here are ones that Cover would have found acceptable or even interesting.

Type
Research Article
Information
Journal of Law and Religion , Volume 7 , Issue 1 , 1989 , pp. 21 - 31
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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References

1. Cover, , The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 GA. L. Rev. 815, 831 (1986)Google Scholar.

2. For a discussion of the difference between opposing the death penalty and supporting its abolition, see notes 17 and 18 and accompanying text, infra.

3. Soifer, , Reviewing Legal Fictions, 20 GA. L. Rev. 871, 912 (1986)Google Scholar.

4. See Tushnet, M., Red, White and Blue: A Critical Analysis of Constitutional Law 155–158 (1988)Google Scholar.

5. In speaking of a sketch, I mean to emphasize that I will have little to say about the conventional, and correct, observations liberals usually make about the inhumanity of the death penalty, including the inhumanity it requires of those who directly inflict it (as distinguished from those who authorize its infliction in the abstract, either by approving capital punishment legislation or by imposing the sentence in particular cases).

6. Soifer, supra note 3, at 912.

7. Mishnah Makkot, I, 10.

8. Deuteronomy 21: 18–21Google Scholar.

9. Goldin, H., Hebrew Criminal Law and Procedure 166–78 (1952)Google Scholar.

10. I do not mean to suggest that people who are not eligible for the death penalty under contemporary constitutional law have not done very bad things, see Coker v. Georgia, 433 U.S. 584 (1977)Google Scholar (death penalty for “nonaggravated” rape unconstitutional).

11. For a recent example, see Woomer v. Aiken, 856 F.2d. 677 (4th Cir. 1988). But there are many others.

12. See Paternoster, , Prosecutorial Discretion in Requesting the Death Penalty: A Case of Victim-Based Racial Discrimination, 18 Law & Soc'y Rev. 437 (1984)CrossRefGoogle Scholar.

13. See Cover, R., Fiss, O., & Resnik, J., Procedure 441–42 (1988) (reprinting “open letter” from Gary Gilmore)Google Scholar; Cover, supra note 1, at 829 (quoting Mailer, N., The Executioner's Song 521 (1979)Google Scholar, which quotes Gilmore: “Don't the people of Utah have the courage of their convictions?”).

14. I put aside the interesting question of whether Gilmore himself had relied on the promise, and assume that there are some murderers who do.

15. Cover, supra note 1, at 829-30.

16. Berman, , Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Calif. L. Rev. 779, 791 (1988)CrossRefGoogle Scholar.

17. For a similar observation, in the context of school prayer, see Hauerwas, , A Christian Critique of Christian America, in Nomos XXX: Religion, Morality, and the Law 110 (Pennock, J. & Chapman, J. eds. 1988)Google Scholar.

18. Again I do not want to overstate the point, as some supporters of capital punishment have in suggesting that each death penalty actually carried out deters five, eight, or more murders. My only point is that it is counterintuitive to suggest that imposition of the death penalty deters less than a single murder more than imposition of some noncapital penalties.

19. See. e.g., Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 39 (1983)Google Scholar.

20. Such a world might well be anarchical, but, as I have argued elsewhere, Cover can readily be understood as an anarchist. M. Tushnet, supra note 4, at 155.

21. 463 U.S. 880 (1983).

22. Cover, supra note 1, at 831.

23. Sometimes abolitionists address another form of arbitrariness, the imposition of the death penalty on someone who deserves it when others equally deserving manage to get noncapital sentences. In the absence of an invidious reason why some receive and others avoid the death penalty, I am unconvinced that the proper response to this sort of arbitrariness is abolition rather than extension of the death penalty to the improperly exempted group.

24. See McCleskey, v. Kemp, 481 U.S. 279 (1987)Google Scholar. The Court in McCleskey did not, at least openly, reject the evidence supporting this conclusion, but—essentially conceding the at least as yet ineradicable racism of United States society—argued that providing a remedy for the racism proved in McCleskey would commit the Court to remedying racism throughout the system according to which “justice” is administered in the United States, a task that the majority in McCleskey believed to be one not properly undertaken by the courts.

25. In this second category the question of remedy to which I referred in note 23 is not a serious one. That problem is serious only when we believe that we are faced with two groups of people, both of which should have received the death penalty but one of which did not (for invidious reasons). As I noted, the appropriate remedy in such a situation is not abolition but imposition of the death penalty on the group that improperly was relieved of it. In contrast, in the second category there is no a priori reason to believe that any particular defendant properly received the death penalty; abolition as to the entire category is therefore an appropriate remedy.

26. Recent examples, I suggest, would be the execution of John Spenkelink, see sources cited in Cover, supra note 1, at 830 n.24, and the Court's willingness to uphold the imposition of the death penalty in Tison v. Arizona, 481 U.S. 137 (1987)Google Scholar.

27. See Henley, , Constitutional Integrity and Compromise 145-46, in Philosophical Dimensions of the Constitution (Meyers, D. & Kipnis, K. eds. 1988)Google Scholar (” ‘Life’ and ‘capital … crime’ are mentioned only to secure the protection of due process and of grand jury indictment, respectively, not to make a point about the death penalty. Here the text stutters”).

28. See Meltsner, M., Cruel and Unusual: The Supreme Court and Capital Punishment (1973) (describing the NAACP's campaign)Google Scholar.

29. Powell, v. Alabama, , 287 U.S. 45 (1932)Google Scholar; Brown, v. Mississippi, , 297 U.S. 278 (1936)Google Scholar; Chambers, v. Florida, , 309 U.S. 227 (1940)Google Scholar.