While many commentators argue that we should separate our emotions from how we punish criminals, Professor Stephanos Bibas thinks we should put emotion back into the capital punishment debate.
“I think that the separation of emotions from reason misconceives what it means to have appropriate moral judgment in punishment,” said Bibas, professor of law and criminology at the University of Pennsylvania School of Law, who spoke about the death penalty at an event hosted by the Federalist Society. “It has to do with the symbolism or the gravity, the message that is sent, the lesson that people feel is taught.”
Bibas argued that emotions do matter and should matter in punishment. He gave examples of heat of passion crimes, the battered woman’s syndrome, hate crimes and certain versions of the insanity defense as proof that emotions do matter in punishment and why they should for the death penalty.
“Commentators tend to take the attitude that the system is just about trying to inflict appropriate deterrence, incapacitate or lock up dangerous people, and that it shouldn’t be clouded too much by emotions, that those are kind of distractions from what we should be focusing on,” Bibas said. “I think these critics are missing the point fundamentally. I think you have to have been in a law school or in the academy for a long enough time for your common sense to have been schooled out of you to miss some of these points that have been missed by these people.”
Bibas said emotions often come into play on the defendant’s side but have largely been taken out of the prosecution’s side.
“I think emotionally, the death penalty is connected at the pardon and clemency stages and parole for other kinds of crimes,” he said. “One of the central inquiries there as at the capital trial is, ‘Is the defendant sorry? Has the defendant shown remorse?’ That’s like the second or third most important factor that juries weigh when deciding whether to give the death penalty.”
John F. Stinneford, assistant professor of law at UF, said the emotional appeal of the death penalty cannot be sufficient to justify it for two reasons.
First, emotional reaction cannot always be a reliable guide to a fair outcome, Stinneford said. For example, throughout the 19th century and in part of the 20th century, sex between an African-American man and a white woman caused a great degree of public anger but didn’t lead to just results, Stinneford said.
Second, Stinneford used castration as an example to show that people are often in favor of practices that have long been abandoned.
“It seems to me that even emotion directed at the proper object cannot in itself justify any particular punishment,” Stinneford said. “There is much emotional support for the death penalty, but there’s also much public support for punishments that have been condemned in the Anglo-American tradition for hundreds of years.”
Stinneford argued that letting emotions into the equation too much could lead to public support of torture.
“Given the current great public hatred of sex offenders in particular, it’s not hard to imagine public anger approving torture, the rack, burning at the stake,” he said. “If we agree that such punishments are not permissible despite their emotional support, then we need something more than emotion to justify the death penalty. We need some other ground of justification; emotional support in and of itself will not do it.”
Bibas responded that the death penalty should not only be judged by emotion but reason needs to be factored into the equation.
Bibas also argued that courts are worrying about pain inflicted upon those sentenced to death too much. He said the death penalty has become too much of a clinical process.
“Fine, the defendant is a human, the defendant who was convicted deserves to be treated like a human and not tortured, but I am not troubled by the defendants having some suffering along the way because it’s part of the deserved punishment,” he said. “I think there is a bedrock retributive intuition that there is some level of payback or deserved suffering.”
Finally, Bibas argued that punishments should be more public so people can see justice being served. The reason prison sentences are rising is because the public does not see criminals being punished enough. Bibas has considered public executions and said it might help our criminal justice system.
“Even if you are an opponent of the death penalty, maybe you would want the public executions precisely because of my theme that out of sight means out of mind,” he said. “If the public has to face up to what it’s doing, it may be more serious about what it’s doing and may do it with less frequency. I’m not sure where I come down on that; I’m open to the idea of trying it and seeing; if it becomes a ghoulish spectacle, fine.”
