Using the Functional Approach to Overturn "Transcendental Nonsense" in Arguments for the Death Penalty

-- By JocelynGreer - 26 Feb 2013

Introduction

Felix Cohen tells us that judicial opinions consist mostly of "transcendental nonsense," saying of recent appellate court decisions, "... the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem" (pg. 811). Working from this premise, figuring out how to create new legal ideas to argue against court-sanctioned deprivations of individual rights – something I would like to do one day – is a daunting task. To me, it seems that the first step is to look between the lines of the flawed framework and see what is actually influencing judges to rule the way they do. The legitimacy of the death penalty is an ideal case study, because of the obvious flaws I see in the arguments of its proponents. Based on Oliver Holmes' and Cohen's characterizations of judicial review, once I discover what is actually driving the rule, I think an effective tool of persuasion would be illustrating that the alternative achieves the same ends.

What alternative form of human sacrifice is available that you propose they switch to?

"Transcendental Nonsense" in Arguments for the Death Penalty

Mens Rea in Murders and Capital Punishment

The death penalty and the justifications for it in the nameless, fictional state in the show Oz is a paradigm for similar policies across the country.

Wouldn't it make sense to talk about the real world, instead of a television drama?

Not only does it raise obvious constitutional concerns, it has been proven not to deter crime.

At a minimum, you needed a cite here to provide some evidence. You can't pass this off by mere assertion. And so far as the social science goes, I don't think you can prove your point of view to even the most fairminded proponent of capital punishment: evidence on "the deterrent effect" of capital punishment is intrinsically equivocal.

When asked to explain its legitimacy in light of the facts, the Governor states, "These days murders are random – senseless – maybe the punishment should be too." This reasoning quite literally puts our criminal justice system on the same plane as criminal activity.

And no real official in real life would offer it as a real justification. You're just fooling with a straw man, not meeting real arguments with real objections.

Since governments find both criminal thought and conduct so objectionable that it mandates punishment, the notion that our sentencing should behave with the same mens rea and actus reus is clearly nonsensical.

What does this mean?

The reasoning behind the death penalty on Oz is not that far off from the reality: In Kennedy v. Louisiana, the Supreme Court affirmed that, "' the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.'"

How are the two statements related? This makes no sense to me.

Other "Transcendental Nonsense" in the Death Penalty

Furthermore, any hope for a logical rule to apply is lost when Justice Kennedy continues, "Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.'"

Why? I don't understand this comment. Justice Kennedy is making a point that opponents of capital punishment need in order to prevail. Because capital punishment was unquestionably regarded as neither cruel nor unusual within the meaning of the Eighth Amendment in 1791, unless those words establish an "evolving standard of decency," as the Court said in Furman, the Amendment provides no support to opponents of execution. Justice Kennedy is stating, for the Court, the crucial principle that the Eighth Amendment's standard of proportionality evolves. Why would you object to that?

While the statistics speak to a majority of Americans favoring the death penalty, Justice Kennedy himself seems to note that this is as much a primitive view as it is a popular one. "The Amendment ‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.' This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.'" Kennedy's conclusion implies that we can expect the public opinion of the death penalty to change as our society matures and becomes more moral, but for now we have to enforce un-evolved standards of decency. This leaves me wondering, "Why can't we just fast forward to the ideal rule?"

That's neither what he says nor what he means. He do you conclude that from the text of the opinion?

Applying the Functional Approach to the Death Penalty

Functional Reasons behind the Death Penalty

As it relates to the psychological welfare of our citizens, I do think there is a functional argument in favor of the death penalty underneath all the transcendental nonsense. I first found it when viewing the story of Richard L'Italien, an inmate on death row on Oz. In the entire six season-series, only about ten minutes are devoted to L'Italien's character, but those ten minutes are enough to depict him as heartless and completely unsympathetic. When he is told by the warden he is going to be executed the following day, he callously responds, "Tomorrow? Well, my schedule's clear. OK." Before the warden walks away, L'Italien admits to the rape and murder he was charged with. And then, in the same taunting tone, he admits to raping and murdering 39 other women. As I listened to him speak about his crimes with absolutely no remorse, I realized that what scared me about L'Italien was how inhumane he was: It was as if he was not vulnerable to the same human emotions I was. When he gets on the table where he will receive his lethal injection, he quivers like anyone in that position would and proclaims, "I'm really not ready for this." It was at that moment that I felt he was just a man like any other person, and was subject to the same state-imposed restraints on his behavior. In a sense, this seems to be the same reassurance that truly drives judicial decisions in favor of the death penalty: If you take away someone's life and liberty, rest assured, the state will do the same to you.

Could we please stop using bullshit invented to sell soap on television as a substitute for reality? Are we seriously entertaining decisions about social policy questions based primarily on pulp fiction?

The Functional Approach to Arguing Against the Death Penalty

Now I reach the question of how to refute the positive effect of reassurance that results from the death penalty. As I personally understand that feeling, it can be rebutted by a showing that rehabilitating criminals can make us feel that they are just as human as we are. Society already links rehabilitation to the cause of human rights, but this context elevates criminals to the status of other citizens. The death penalty demotes them to the status of a regular person from the notion that they are "monsters" that are somehow above the law. Since we are – or should be – past any primitive conception that murderers somehow have a different biological nature than us, I would try to persuade courts to focus on the nurture that caused their inhumane character. That is what can actually be ailed and what truly differentiates them from the rest of society. From that standpoint, rehabilitation – complete with giving criminals the same basic resources (i.e. education and emotional support) that standard non-murderers have – would seem a much more obvious and "mature" alternative to the death penalty.

But that's not an argument addressed to proponents of the death penalty who don't believe in rehabilitation, particularly not for the types of murderers sentenced to death. It's not even convincing to me, despite my opposition to capital punishment and my belief in rehabilitation. To anyone who actually believes in the social utility or deontological morality of serious retributive punishment for, e,g. cop-killing or torture-murdering, your argument would be ludicrous.

We need to lose both the TV references, which don't substitute for real-world evidence and illustrations, and the Felix Cohen references, which are completely irrelevant to the position being advanced. You haven't shown any transcendental nonsense, so far, in the arguments for the death penalty, and you are unlikely to, because most of the arguments in its favor are not law-centric at all. Nor have you shown a functional approach to arguing against the death penalty, because you haven't addressed the function of the death penalty at all, except to deny that its function is deterrent, on an evidentiary basis you don't disclose. But unless you think the only cultural function of the death penalty is deterrence (which would be a strangely truncated view of your opponents' positions), even that imperious declaration didn't even get you started.

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