For decades, the death penalty has been one of the most passionately debated topics in American law. Lawyers, social scientists, philosophers, theologians, the mass media, and ordinary citizens have argued over its wisdom and legitimacy. Remarkably, though, when the principal arguments for and against the death penalty are examined closely, they seem inadequate to the task of either justifying the death penalty or proving convincingly that it must be abolished.
As a question of constitutional law, the death penalty debate unsurprisingly has focused on whether executions are "cruel and unusual" within the meaning of the Eighth Amendment.(1) Beyond questions of how to give specific content to those general terms, the government's choice of criminal punishments must meet a more fundamental requirement. At the very least, due process of law requires that there be a rational basis for government action that deprives one of life or liberty.(2) Thus, rational argument must support the choice of punishment. Of course, the choice of punishment never has been subject to strict scrutiny, which would impose a requirement that the punishment go no further than necessary to achieve the government's interest.(3) Still, the choice by government to impose a severe punishment may not be arbitrary; rational grounds for the choice are required.
The search for a rational basis for the death penalty has led to two primary, alternate justifications, both of which abolitionists contest.(4) The first of these is the consequentialist argument that imposition of the death penalty furthers clearly defined purposes, usually deterrence, better than do less severe punishments.(5) Abolitionists seem most comfortable contesting this line of argument.(6) Although proponents of the death penalty by no means concede an inability to demonstrate the validity of their consequentialist arguments,(7) the weight of evidence seems to refute proponents' claims of deterrence.(8)
When faced with the weaknesses of deterrence-based consequentialist arguments, death penalty proponents gravitate toward arguments based on retributive theory.(9) According to this line of thought, desert and individual responsibility justify, if not demand, the symmetry of capital punishment as a response to murder, irrespective of the existence or nonexistence of any deterrence.(10) Though some abolitionists have tried to frame their case upon retributivist thought, this line of argument is used primarily by death penalty advocates.(11)
Recent Supreme Court cases seem to take the position that the state need not win the consequentialist debate in order to defend the death penalty.(12) Retribution, it would appear, provides a sufficient foundation. Analysis of the Court's death penalty jurisprudence, however, shows a surprising lack of sympathy for arguments that seem to go directly to the core concerns of retributivism, the assessment of personal responsibility, and even the question of guilt itself.(13) Perhaps these cases indicate that something else is going on here, something of which the Justices themselves may be largely unaware, something neither retributivist nor consequentialist, and perhaps somewhat beyond the limits of traditional rational argument.
Rene Girard, a theorist whose work attempts to connect literary criticism, anthropology, and theology, contends that religion, law, and indeed many of the bonds of civilization and culture, rely on ritualized violence in order to break and tame the cycle of imitative, or mimetic, violence that inevitably arises within society.(14) Girard's theories evoke controversy, but if they are even partially correct, they may shed a great deal of light on the role played by the death penalty in American society. They may explain much that recourse to either consequentialism or retributivist theory leaves unexplained.
If Girard's theories do help explain the persistence of the death penalty, they also may require those who debate the issue to confront new questions. …