Death Penalty Legal Scholarship:
I just received the very interesting new book, Death Penalty Stories, part of the Foundation Press series of subject-specific essays by different scholars on important cases in the field. It looks excellent, and I look forward to reading it. Looking through the chapters, though, it occurred to me that nearly all the chapters were written by scholars who are noted death penalty opponents.

  This led me to wonder: Who are the legal scholars who write on the death penalty on a regular or semi-regular basis but who do not write from the perspective of opposition to the death penalty? Stuart Banner might be one: I've only skimmed his book on the death penalty, but it struck me as largely neutral in tone. Are there others? I realize that most legal scholars who write on the death penalty are against it; I'm just curious about who the outliers are.

  UPDATE: Just to be clear, the post is asking for the names of scholars, not for readers' personal views of the death penalty. Please keep the comments relevant to the post -- thanks.
Robert Blecker
3.30.2009 3:54pm
Edmund Unneland (mail):
Kent Scheidegger, perhaps?
3.30.2009 4:00pm
Pro original intent death penalty:
[Deleted by OK. To be clear, the post is asking for the names of legal scholars who write about but are not opposed to the death penalty. It is not asking for readers' personal views of the death penalty.]
3.30.2009 4:02pm
Italian 1L (mail):
Richard Bonnie at UVA doesn't seem completely against it - he argues for a narrowing of the class of crimes that should be available for the death penalty as punishment.
3.30.2009 4:10pm
My Middle Name Is Ralph:
I suspect that if we had public executions, that would do more than anything else to abolish the death penalty in the US. Keeping executions "clean" allows the public to avoid confronting the dirty reality of the death penalty.
3.30.2009 4:24pm
Thorley Winston (mail) (www):
If I recall correctly, public opinion polls have generally favored the death penalty, at least for certain crimes. So, if legal scholars are typically opposed, is that due to a careful study of criminal law and its discontents or of their emotive preferences?

I would say that the latter is probably closer to the truth. Law schools and law professors generally tend to be on the left of the political spectrum and (without disparaging the profession) I tend to think that very few people study the law and then decide whether they agree with the death penalty* versus those who already have an opinion on the death penalty and try to find legal support for their pre-existing opinions.

* Or anyone of a myriad of hot button issues. That doesn't mean BTW that you can't be intellectually honest in your arguments. My criminal law professor was an MNCLU board member and when he shared his opinion would occasionally state that while he disagreed with a particular policy, he didn't think it was unconstitutional.
3.30.2009 4:28pm
Bruce Wayne:
Here's one:

Paul G. Cassell, In Defense of the Death Penalty, in Debating The Death Penalty: Should America Have Capital Punishment? 183, 205 (Hugo Adam Bedau &Paul G. Cassell eds., 2004)
3.30.2009 4:35pm

Paul Cassell? Who is he? ;-)
3.30.2009 4:39pm
Dave N (mail):
The really obvious one--fellow Conspirator Paul Cassell. who co-authored Debating the Death Penalty: The Experts from Both Sides Make Their Case
3.30.2009 4:40pm
Pointer (mail):
I just wrote my comment on an issue that dabbled on this subject (post-conviction DNA testing in a specific state); thus, I was forced to read a lot of articles that discussed the death penalty as well. As you seem to infer from your posting, I could not find one author that strongly advocated for the death penalty. In all actuality, I was surprised to see how many authors in this area fail to address counter-arguments and misconstrue facts to support their views. The only suggestion I can come up with is to look for opinion pieces from legislators. While not legal scholars, many are still well educated.
3.30.2009 4:43pm
Joseph Slater (mail):
A better question might be, who, exactly, is poster "Bruce Wayne"?
3.30.2009 4:53pm

Scalia, Thomas, Alito and Roberts
3.30.2009 4:59pm
NickM (mail) (www):
Does Ernest van den Haag count, since he's dead?

3.30.2009 5:05pm
runape (mail):
Sunstein and Vermeule, although neither writes "regularly" on the topic.
3.30.2009 5:13pm
Lapin Agile:
Cass Sunstein and Adrian Vermeule wrote an article arguing that the death penalty, on the whole, is a deterrent that saves lives. If I remember correctly, they come close to suggesting that the death penalty is morally required.
3.30.2009 5:14pm
Mystery Guest:
How about Dr. Stephen P. Klein of RAND?

Perhaps because he has worked with the ACLU on landmark cases (like Serrano v. Priest), he was hired to look for bias in the application of the death penalty.

But when he studied it, he found that the people who got the death penalty deserved it, were frighteningly evil, and were not the victims of bias at all.

He developed nightmares as a result of reviewing all the murder cases, because the death-penalty murderers were so nightmarishly evil.

Ernest Van Den Haag is, unlike Dr. Klein, a conservative. He studied the death penalty and found it saved lives by deterring murders.
3.30.2009 5:20pm
El Fako Namo:
The Sunstein/Vermeule article is 58 Stan. L. Rev. 703. The first two paragraphs of the conclusion are pasted below.

We conjecture that something like the following set of views about capital punishment has been, and probably still is, widespread in the legal academy: capital punishment does not deter, or at least no one has set out even plausible evidence that it does so; [FN131] some categories of murders, especially crimes of passion, are undeterrable (at least by capital punishment); [FN132] even if capital punishment has a deterrent effect, the effect is trivial, perhaps because of the relatively small number of capital sentences and the long time lags between sentencing and execution; [FN133] and the system of capital punishment is rife with error and arbitrariness. [FN134]

*749 The recent evidence raises legitimate doubts about all of these views: capital punishment may well have deterrent effects; there is evidence that few categories of murders are inherently undeterrable, even so-called crimes of passion; some studies find extremely large deterrent effects; and error and arbitrariness undoubtedly occur, but the evidence of deterrence suggests the possibility that some or even many prospective murderers may be receiving a clear signal.
3.30.2009 5:28pm
Scott Taylor:
Doug Berman of the Sentencing Law &Policy blog - although he likes to present himself as balanced/uncommitted. It's OK with him as long as it is done well.

Scott Taylor
3.30.2009 5:35pm
Paul Cassell (mail):
In my pro-con book of the deasth penalty [mentioned above], I had a hard time tracking down pro-death penalty scholars from the legal academy. We ended up using Louis P. Pojman,a professor of philosophy at the U.S. Military Academy for one of the pieces.
3.30.2009 5:59pm
Thanks, Paul.

Yes, I'm reminded of the panel at the AALS mid-year meeting 2 years ago on how you could bring a diversity of different views of the death penalty to enrich the debate. The panel was made up only of death penalty critics, who had their own different takes on how to oppose the death penalty (using statistics, history, etc.).
3.30.2009 6:07pm
M (mail):
In his book _Getting Even: Forgiveness and Its Limits_, philosopher of law Jeffrie Murphy at least doesn't rule out the death penalty and seems to offer an at least in principle approval of it, though I expect he's rather more skeptical of the rule as applied, given what I know of his other, earlier, writings, where he presented several arguments against the death penalty.
3.30.2009 7:41pm
early bird (mail):
Adam Gershowitz, at South Texas College of Law, recently wrote an article proposing teams of super prosecutors and super defense attornesy, at the state rather than the county level, who would handle all death penalty cases in a state. It was quite neutral in tone and very much about improving the way the death penalty works, so that poor counties don't fail to pursue death for lack of funds, and prosecutors in wealthy counties don't pursue death purely for political reasons. A very interesting article.

I'm an articles editor, and we narrowly rejected it. Some of my colleagues felt the proposal wasn't realistic enough. I thought they had a point, but still thought it worth publishing. It had an expedite request, I'm pretty sure, so it should be coming out next year. Look for it.
3.30.2009 9:17pm
Eric Rasmusen (mail) (www):
Would an article favorable to the death penalty have any chance of being accepted for publication by a law review?

That's a serious question--- I don't know the answer. Student editors reading this-- what do you think?
3.31.2009 11:25am
Eric -

I'm an Articles Editor and I would entertain the idea of publishing a pro-death penalty article. I have yet to see one submitted to us though.
3.31.2009 12:29pm

It was quite neutral in tone and very much about improving the way the death penalty works ..

Wait? You mean there are law review articles focused on fixing things instead of scoring cheap ideological points or buttering up the politicos for a sweet appointment? Mirable dictu!
3.31.2009 12:41pm
Doug Berman (mail) (www):
Does my opposition to over-zealous opponents of the death penalty qualify for your purposes, Orin?

As Scott Taylor suggests, I consider myself an agnostic on the death penalty. I have not written extensively on the death penalty itself, but I have frequently complained in scholarship and on my blog about the excessive and overheated opposition to the death penalty one often finds in the academy, in courts and in interest-group advocacy.

Here are a few links to my more recent work in this vein:

Baze-D and Confused: What's the Deal with Lethal Injection? (Jan. 2008) (debate with Alison Nathan)

A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death' (July 2008)

Reorienting Progressive Perspectives for
Twenty-First Century Punishment Realities
(Dec. 2008)
3.31.2009 2:08pm
melissa (mail) (www):
Eric, I'm also an articles editor (well, I guess that gig is over now that I'm 4 wks from graduation, but I was), and I'm certain that we wouldn't have rejected a pro-death penalty article. It's a pretty conservative school though, as far as they come(University of Tennessee); I might even venture that an anti paper would face a little more scrutiny (although I don't think either would be rejected just for the ideology).

We strive to print "useful" articles, so the one that someone else mentioned about reforming the system probably would have scored some points over just an ideologically based pro or con argument.
3.31.2009 7:11pm
Sebastian the Ibis (mail):
Alan Dershowitz

I cannot think of an article where he discusses the death penalty per se, However his writings do justify killing by authority figures all the time. See e.g. Worshipers of Death

—————————— ————————————————-

I wonder if the lack of scholarship advocating the death penalty is a function of the disparity in complexity between the two sides. Just saying "Willie Horton" is an effective enough argument to end presidential aspirations. While Baldus and others come up with statistical models so complicated they are inadmissable in court, and only relevant in scholarly journals.

Also, are there really that many pro-death penalty sub-issues that have not been fully explored by the DOJ and state prosecutors? Even though they are not Academics and don't publish they do a very very good job of arguing the issues.
3.31.2009 7:16pm
Ernest van den Haag (1914-2002) wrote regularly on the death penalty and was in favor of it.
3.31.2009 10:34pm
Edmund Unneland (mail):
It seems to me a case of the fish asking "Water? What water?" Hermetically sealing ourselves against opinions that might upset our pre-judgements seems to be the current trend. The academy impoverishes itself by neglecting the obligation to learn about all from all; that facet seems to me to be at the heart of a well-constituted university.
4.1.2009 12:50pm
Joanna Shepherd and Paul Rubin wrote what I would call a neutral article for the Michigan law Review cerca 2005.
4.1.2009 4:41pm
c.f.w. (mail):
Not sure why there is much need for pro-dp scholarship with so much of the US criminal-law legal infrastructure already devoting vast numbers of hours to "tinkering with death." Cal Supreme Court probably spends half its time on DP cases. USSCT takes more DP cases than any other sort of cases, and has done so for 10 plus years, I estimate.

Find me some pro DP scholarship written by those who have actually spent time with the "evil" and "nightmare producing" folks who end up on death row, versus those serving lesser sentences, and I might be interested.

Reading Sunstein about DP issues, and how death is a "moral imperative" in any case, strikes me as about as useful as reading Yoo about how torture-type conduct is OK if a President wants it done.
4.1.2009 5:10pm
"Find me some pro DP scholarship written by those who have actually spent time with the "evil" and "nightmare producing" folks who end up on death row, versus those serving lesser sentences, and I might be interested. "

Judge Ed E. Carnes
4.1.2009 5:21pm
c.f.w. (mail):
Carnes has never been on the defense side of any DP case, as far as I can tell. He is one who has made a career out of killing people in jail. He has never prosecuted any capital or non-capital case as far as I can tell. If one wants an "echo chamber" perspective on why to kill prisoners (rather than use LWOPP), he seems as good as any person to ask.



Carnes received his B.S. from the University of Alabama in 1972. He received his J.D. from Harvard Law School in 1975. After law school, he accepted a position as an assistant state attorney general for the state of Alabama, where he served from 1975 to 1992.

From 1981 to 1992 he served as the Chief of the Capital Punishment and Post-Conviction Litigation Division of the Alabama State Attorney General's Office. As the head of Alabama capital punishment unit, Carnes became, according to the National Law Journal, "the premier death penalty advocate in the country and a chief adviser on capital punishment to judges, the U.S. Justice Department and other prosecutors."[1] Carnes re-wrote Alabama's death penalty statute,[2] and defended its use before the Supreme Court of the United States on three occasions, including Beck v. Alabama, 477 U.S. 625.

His ascendancy to the bench created a hole in the capital punishment unit, leading an Alabama appellate judge to lament that the state had lost a "very effective voice in support of executions in this state." [3]

4.2.2009 3:00pm

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