The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.
Berman, Douglas A. and Bibas, Stephanos, "Engaging Capital Emotions" (2008). Faculty Scholarship at Penn Law. 213.