Berman Responds to My Comments

In response to my comments about his article (co-authored with Bibas), Berman had this to say:

In my view, connecting the emotion/rational divide to the retribution/deterrence divide is insightful, but incomplete.  I personally think there is and should be some rationality in retribution and also that there is and must be some emotion in deterrence.

Moreover, to go a bit meta, I often notice a lot of emotion in the way in which supposedly "rational" scholars examine and debate deterrence in the context of the death penalty.  In the Kennedy context, I am yet to see a truly sober and meticulous analysis of whether capital child rape could be reasonably expected to serve utilitarian interests.  Rather, in many critiques of capital child rape, we get what seem to me to be emotion-driven and highly-questionable assertions that there will be negative consequences from allowing child rape to be a death-eligible crime.

To go even more meta, I think Corey's points strike to the core of what I consider one of the hardest conceptual challenges of utilitarian theory that arises in a lot of punishment settings: it is a legitimate good with a place in the utilitarian calculus if people feel good about making others feel bad?  I sense that some (many?) citizens feel good emotionally knowing that society will threaten to sentence some child rapists to death.  Most utilitarians (myself included) have never quite been sure about whether and how these feelings ought to enter into a utilitarian calculus.

I'm appreciative of Berman's further elucidation. I hadn't considered the sort of ancillary emotional effects of punishment on society at large. Perhaps because my own particular brand of utilitarian punishment follows more from John Stuart Mill's, I tend to ignore those sorts of consequences (just as anyone who finds the harm principle informative tends to discount the utilitarian consequences of some people being emotionally upset at the thought of homosexual sodomy occurring behind closed doors). Yet, with my blinders off, I think Berman's idea of sort of collective emotional function of punishment is an interesting idea. I'm still skeptical of how it should inform policy, but I still strongly agree that such emotion surely does.

I disagree a bit with Berman that there hasn't been a sophisticated utilitarian analysis in the Kennedy case. I think there have been a lot of sound arguments made (of which Berman's disagrees) in scholarly, popular, and legal forums. I think it is also notable that these arguments against capital rape statutes have been made by groups who support the application of the death penalty in virtually every other context: victim's rights groups.

In the comments, Berman asks why no study has been done in Louisiana since the statute has been around for a decade. However, there are reasons that there is almost no empirical analysis in this area. The lack of study is largely due to the newness of these capital child rape laws and sample size problems with historical analysis of capital rape statutes. Death penalty deterrence effects are hard enough to isolate in murder cases - with child rape, the effects are probably impossible to measure.  Deterrence derives not just from the passage of the penalty, but also from the application of that penalty. We have yet to have any actual application. I've talked with several people about trying to do such an empirical study (either based upon recent laws or based on historical examples) and everyone I have spoken with has said it is impossible. There just isn't enough data. Without this empirical analysis, we are left with "logical" arguments about the deterrence incentives created.

Personally, I'm persuaded by the freebie argument that capital punishment will increase the incentive to kill the victim, will decrease reporting (especially because most defendants are known to the victim and the victim's family), and that the nature of the death penalty proceedings will increase trauma of child victims. I know Berman has disagreed with the first of these three arguments (and I think there is a good debate to be had). In the case of child trauma, his recent comment that the death penalty might increase pleas is a potential counterbalance. I'm not sure if he has addressed the underreporting concern (which could have substantial deterrence effects). At the end of the day, each of these arguments presents an empirical question. Unfortunately, for the time being, there are no empirical answers. And without such evidence, I think reasonable minds can disagree about the desirability of capital child rape statutes.

Comments

[Doug B.]

And if reasonable minds can disagree, shouldn't this be a legislative issue rather than a constitutional one?

[Corey Rayburn Yung]

I think the policy considerations that I talked about shouldn't be relevant to the 8th Amendment analysis. Under current doctrine, they are tangentially related (since they go whether the statute serves the functions of deterrence and retribution). The reasons why the statute is unconstitutional are wholly separate in my mind. And if the Court sticks with evolving standards of decency as its approach, I think there isn't enough of a trend to find the Louisiana statute constitutional. Of course, after listening to the oral argument, however, I think the Court is likely to disagree with my assessment.

[jimbino]

Capital punishment for "sex offenders" will also contribute to disrespect for the law altogether, if not to the offing of offending cops, prosecutors and legislators.

The emotional effects upon society at large are a critical consideration because those effects bind a society to its decisions, and therefore influence how easily a decision and its consequences can be assessed and adjusted. The greater the emotional investment, the greater the incentive to continue a policy regardless of its more concrete consequences.

This case is the latest demonstration of the shift away from even the basest of "common sense" approaches to sex offender policy (such as the "common sense" that restricting residence will decrease victimization) to one that places the emotional desire to take sex offense punishment to its irrevokable extreme above the potential safety of a child. Ignoring the possibility of the policy increasing the likelihood of death kicks "If it saves one child..." out of the debate. Proponents are actually concluding the death of one child would be an acceptable price for deterring the rape of another.

balance "saves one child" against "kill one rapist"