Two leading sentencing scholars have posted a paper revolving around the Louisiana v. Kennedy case. Here is the abstract on SSRN:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.
I've just finished reading the draft and I highly recommend checking it out. My initial thoughts are the emotion/rational divide basically mirrors (or is the same as) the retribution/deterrence divide. Since retribution is often explained not in its arcane philosophical terms, but instead in terms of payback, it fits neatly with emotions. Someone being punished fulfills an emotional need that is basically retribution. Deterrence theories, on the other hand, are, with regularity, theoretically and empirically grounded. Deterrence arguments fit the "rational" label.
I strongly agree with B&B that emotions are unavoidable in discussions of criminal sentencing. I think this is particularly the case when sex offenders are involved. I'm less convinced concerning the normative argument that emotions serve a net positive role in sentencing debates. As my previous responses to Berman's posts about Kennedy illustrate, I'm tentatively a deterrence-oriented scholar concerning sentencing policy. If a law doesn't serve a net utilitarian/deterrence function, it should not be adopted. Retribution is too abstract and sometimes counter-productive (from a utilitarian perspective) to fully inform policy. So, in the Kennedy case, I think the normative argument for emotion assumes that retribution should be the controlling theory. Perhaps deterrence factors in the background, but emotion should be the lodestar for debate. While I think descriptively, this claim is probably true, I disagree with B&B that emotion should be central. To do so risks the negative utilitarian consequences that I and others have articulated in response to the Louisiana capital rape statute (which Berman has, to his credit, argued against in other forums).
B&B do show how emotion can be used by abolitionists in these death penalty debates. Since I am no firm abolitionist, this section has less relevance to me. However, it does illustrate the potential double-edged nature of emotion in sentencing law. I'm not sure that emotional arguments on both sides are equally weighted (I think they will tend to favor the prosecution and disfavor minorities). Nonetheless, B&B provide an interesting, balanced exploration of an issue that is rarely talked about in sentencing policy debates.
Sentencing Law & Policy has its post on the article here.