By Douglas A. Berman[*] & Stephanos Bibas[**]
Louisiana seeks to execute Patrick Kennedy for raping his eight-year-old stepdaughter. As the Supreme Court weighs the death penalty for this child rapist, commentators are aghast. The New York Times and the Los Angeles Times editorial pages call child rape a heinous horror but dismiss this reality.[1] The death penalty, they claim, is inherently excessive for crimes short of homicide; visceral disgust at child rape, they assert, clouds reasoned reflection about proportional punishment. This position reflects long-standing criticisms of the death penalty as an expression of raw vengeance, a hot passion that clouds dispassionate justice. The march of justice seems to be in the other direction: away from emotion and towards reason, from Dr. McCoy to Mr. Spock, from the Furies to Athena in Aeschylus’ Eumenides.
But the Furies will not die so easily, nor should we disdain them. Emotions and the passions they create are ever-present in our legal system. They bubble beneath any seemingly cool, detached analysis of crime and punishment. As astute observers highlight, debates over criminal law and practices turn not on neutral deterrence-speak, but rather on emotion-laden claims and concerns.[2] The undercurrents of emotion are especially salient in death-penalty debates. Those who deny or bemoan the benighted persistence of passion fail to appreciate its role.[3]
In this short Essay, we suggest that the conventional attitude toward emotion in punishment is misguided. Part I begins by describing the existing legal terrain, and then Part II evaluates it normatively. Descriptively, emotion is unavoidable in criminal justice and particularly in capital punishment. Indeed, recognizing emotion’s role helps to explain many features of capital-punishment jurisprudence, from the debate over execution methods in Baze to the exemption of juvenile and mentally retarded defendants in Roper and Atkins.[4] Normatively, emotion is crucial to a criminal justice system that seeks both to educate citizens with its symbolism and to channel their justified outrage. Emotions deserve respect, especially when they reflect the public’s moral perspective that certain crimes have profound emotional resonance.
