Rule of law abolitionism

• DOI: https://doi.org/10.1016/S1059-4337(07)00403-6
• Pages: 53-89
• Date: 18 January 2008
• Published date: 18 January 2008
• Author: Benjamin S. Yost

RULE OF LAW ABOLITIONISM

Benjamin S. Yost

ABSTRACT

In the dark days of the 1980s and 1990s, the abolition of capital

punishment was virtually unthinkable. However, a new form of

abolitionism – which I call Rule of Law abolitionism – has raised the

hopes of death penalty opponents. In this chapter, I elucidate the logic of

the Rule of Law abolitionist argument, distinguishing it from its more

familiar doctrinal and moral variants. I then assess its strengths and

weaknesses. On the basis of this critique, I indicate the route Rule of Law

abolitionism must travel to bring about the demise of the death penalty.

The 1980s and 1990s were dark days for death penalty abolitionists. Rabid

public support for capital punishment combined with the Supreme Court’s

attacks on federal habeas corpus made abolition virtually unthinkable.

However, the emergence of a new form of abolitionism, coupled with the

growing power of the moratorium movement, has occasioned a remarkable

improvement in the abolitionist mood. I call this abolitionism ‘‘Rule of Law

abolitionism.’’

While certain versions of Rule of Law abolitionism, most notably the

‘‘new abolitionism’’ or ‘‘legally conservative abolitionism’’ championed by

Austin Sarat, have been discussed in the literature; there has been

insufficient analysis of its conceptual claims. This chapter will remedy this

oversight by illuminating the structure, logic, and specific content shared by

Special Issue: Is the Death Penalty Dying?

Studies in Law, Politics, and Society, Volume 42, 53–89

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00403-6

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different versions of Rule of Law abolitionism. Doing so will enable us to

understand better the strengths and weaknesses of Rule of Law abolition-

ism, which is crucial if we are to evaluate how, and to what degree, it might

contribute to the demise of capital punishment. This investigation is

especially important given the organizing premise of this volume: the

abolitionist movement is at a rare moment of opportunity, as the death

penalty has come under attack from unusual political, cultural, and religious

quarters.

Rule of Law abolitionism eschews controversial moral theory and futile

disagreement with the Supreme Court’s recent Eighth Amendment

jurisprudence. Instead, it stands on intuitive, non-polemical assertions

about the value of legal institutions. In the first part of the chapter, I

compare Rule of Law abolitionism to more familiar types of abolitionism:

(a) moral abolitionism, which argues that the death penalty violates

substantive moral values; and more importantly (b) doctrinal abolitionism,

which argues that the death penalty violates the U.S. Constitution. I then

detail the conceptual contours of Rule of Law abolitionism, with frequent

reference to the essays of Austin Sarat, Justice Harry Blackmun’s Callins

dissent, and seminal cases in the Supreme Court’s capital jurisprudence. (As

the reader will see, my conception of Rule of Law abolitionism is heavily

indebted to Austin Sarat’s ‘‘new abolitionism.’’) I show that Rule of Law

abolitionism begins with the intuition, honored in Furman and Gregg, that

legal violence must be more rational than extra-legal violence. Law’s

violence must be rational, rule-bound, and consistent. Rule of Law

abolitionists argue that capital sentencing cannot be rationalized, and

conclude that we must no longer ‘‘tinker with the machinery of death.’’

Indeed, Rule of Law abolitionism concludes, we have a duty to oppose

capital punishment. Along the way, I show that what distinguishes this

argument from doctrinal or moral ones is the claim that rationality is a

condition of legal legitimacy. Rule of Law abolitionists argue that by

continuing to execute, capital jurisdictions reduce law to a species of mere

coercion.

In the second part of the chapter, I submit Rule of Law abolitionism to

critical scrutiny. I first identify its important rhetorical advantages, showing

how Rule of Law abolitionism enables debates about capital punishment to

occur outside the moralistic vocabulary that so often hampers the

abolitionist cause. These benefits should not, however, obscure the

weaknesses of Rule of Law abolitionism. I argue that Rule of Law

abolitionism typically proves too much – its claim that sentencing

procedures cannot be rational and rule-bound bleeds into an unpalatable

BENJAMIN S. YOST54

argument against punishment as such. And some versions prove too little –

their procedural criticisms function as a roadmap for the reform, and

strengthening, of the capital punishment regime. Although these problems

complicate the promise of Rule of Law abolitionism, I conclude by

gesturing toward some conceptual modifications that will hopefully help

Rule of Law abolitionism realize its full potential.

THE DISTINCTIVENESS OF RULE OF LAW

ABOLITIONISM

Three types of abolitionist arguments have been made in the United States

in the past 50 years. I call them doctrinal abolitionism, Rule of Law

abolitionism, and moral abolitionism. Doctrinal abolitionists argue that

capital punishment is unconstitutional, and that the Supreme Court’s

capital jurisprudence since Gregg is wrong. Rule of Law abolitionists claim

that the death penalty violates Rule of Law values. Doctrinal abolitionism

and Rule of Law abolitionism are easily confused because they both invoke

the procedural values of rationality, consistency, and fairness. Both argue

that these values should trump other legal values (e.g., finality) whenever

there are conflicts in capital cases. The difference is that Rule of Law

abolitionism claims that Rule of Law values must prevail because they

legitimate legal violence, not because the Constitution says so. Rule of Law

abolitionism claims that Rule of Law values legitimate law, and therefore

cannot be given up in favor of other legal values. Rule of Law abolitionism’s

contrast with moral abolitionism is much sharper. Moral abolitionist

arguments proceed from premises found in moral philosophy and theology.

Moral abolitionists typically claim that capital punishment contravenes

substantive moral values such as human dignity.

To clarify the argument of Rule of Law abolitionism, I will first set it off

from doctrinal abolitionism. This discussion must begin with a caveat:

pure doctrinal abolitionists might not exist. I assume that most, if not all, of

the judges and lawyers who have a doctrinal disagreement with Gregg have

other reasons for opposing the death penalty.

1

This presents no problem

because I use terms such as ‘‘doctrinal abolitionism’’ (or ‘‘Rule of Law

abolitionism’’ or ‘‘moral abolitionism’’) to refer to certain types of

arguments, not to characterize people’s actual beliefs.

There are two types of doctrinal abolitionism. One contends that the

death penalty violates the Eighth Amendment’s cruel and unusual

Rule of Law Abolitionism 55