The heart has its reasons: Examining the strange persistence of the American death penalty

• Date: 18 January 2008
• DOI: https://doi.org/10.1016/S1059-4337(07)00402-4
• Pages: 21-52
• Published date: 18 January 2008
• Author: Susan A. Bandes

THE HEART HAS ITS REASONS:

EXAMINING THE STRANGE

PERSISTENCE OF THE AMERICAN

DEATH PENALTY

Susan A. Bandes

ABSTRACT

The debate about the future of the death penalty often focuses on whether

its supporters are animated by instrumental or expressive values, and if

the latter, what values the penalty does in fact express, where those values

originated and how deeply entrenched they are. In this chapter, I argue

that a more explicit recognition of the emotional sources of support for

and opposition to the death penalty will contribute to the clarity of the

debate. The focus on emotional variables reveals that the boundary

between instrumental and expressive values is porous; both types of values

are informed (or uninformed) by fear, outrage, compassion, selective

empathy and other emotional attitudes. More fundamentally, though

history, culture and politics are essential aspects of the discussion, the

resilience of the death penalty cannot be adequately understood when the

affect is stripped from explanations for its support. Ultimately, the death

penalty will not die without a societal change of heart.

Special Issue: Is the Death Penalty Dying?

Studies in Law, Politics, and Society, Volume 42, 21–52

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00402-4

21

Before we can predict the fate of the death penalty, we need to understand

why capital punishment has persisted for so long in the United States. Why

have we continued to execute people into the twenty-first century, despite

evidence of wrongful executions, a lack of hard evidence of the penalty’s

efficacy and the increasing isolation of our position in the industrialized

world? The explanations for this persistence ought to provide insight

into the question of whether the death penalty is dying. Unfortunately, the

conventional discourse on this topic fails to adequately address one essential

aspect of the death penalty’s tenacity. As I will argue, the persistence of the

death penalty is incomprehensible without addressing the role of emotion.

The conventional discourse about capital punishment proceeds along

certain well-established, highly circumscribed paths. In general, it tracks

the usual philosophical debate about the purposes of punishment. The

traditional assumption is that capital punishment must serve an instru-

mental goal: deterrence, retribution or incapacitation. More recently, the

notion that capital punishment might serve goals that are expressive in

nature has gained currency. Questions about racial bias and systemic error

are counterpoised against these basic rationales, so that the question

becomes whether these problems with the system outweigh or detract from

the penalty’s penalogical goals. This is the shape of the legal and

philosophical debate about whether the death penalty is justified. It is also

the outward face of the public debate about the death penalty, since that

debate is often framed and summarized by social scientists and pollsters

whose questions track the traditional discourse (Ellsworth & Gross, 1994).

1

The rather salient emotional content of the question of whether or when

the state should kill is generally treated as a vexing and improper detour

from the rigors of proper legal analysis or the scope of legitimate debate.

This attitude toward emotion – a combination of denigration and denial –

shapes both the debate about whether capital punishment should be

maintained as a legitimate punishment and the debate about who should be

executed. It creates a two-track discussion, in which one track is regarded as

legally grounded, rigorous and acceptable and the other as illegitimate;

not part of the accepted legal language or structure. The result is deleterious

on two interrelated counts.

First, the ‘‘legally grounded’’ discussion, with its reference to time-

honored but affectless concepts like ‘‘deterrence’’ and ‘‘incapacitation,’’ fails

to describe with any accuracy the way people actually arrive at decisions

about the death penalty. The official ‘‘reasons’’ for the death penalty have

only a tenuous connection to the real reasons why people support capital

punishment. Researchers asking people why they support or oppose the

SUSAN A. BANDES22

death penalty repeatedly conclude that ‘‘most people’s attitudes toward

capital punishment are basically emotional. The ‘reasons’ are determined by

the attitude, not the reverse’’ (Ellsworth & Gross, 1994, p. 95).

Second, the official discourse, as currently structured, perpetuates a

misleading and problematic normative assumption: that the official reasons

are devoid of emotion (except, perhaps, for a few carefully managed,

‘‘allowable’’ emotions). Capital punishment discourse too often operates on

the assumption that rigorous, non-emotional reasons for or against the

death penalty exist, but that the conversation keeps getting hijacked by

unruly passion. I suggest that the reasons themselves, both the so-called

instrumental reasons and the so-called expressive reasons, are imbued with

emotional content. The boundary between instrumental and expressive

values is porous, and at bottom, both types of values are informed (or

uninformed) by fear, outrage, compassion, selective empathy and other

emotional attitudes. Or to put it another way, the decision whether or not to

maintain and implement our system of capital punishment is inherently an

expressive decision; one which is both inescapably moral and inescapably

emotional. The official discourse masks, sanitizes or denigrates much of this

emotional content. The result is not to banish emotion from the system, but

to drive discussion of it underground, to privilege certain emotions and to

perpetuate a system that depends on moral and emotional distance and even

disengagement.

The Court’s approach in California v. Brown (1986), in which it upheld a

jury instruction cautioning the jury that it ‘‘must not be swayed by mere

sentiment, conjecture, sympathy, passion, prejudice, public opinion or

public feeling’’ (p. 540), illustrates its misplaced faith in the existence of an

emotionless realm and how it privileges certain emotions. The Court was

confident that jurors would understand this instruction as a prohibition on

the exercise of ‘‘mere’’ or ‘‘untethered’’ sympathy, and would understand

that they were still permitted to exercise mercy or compassion. Justice

O’Connor, in her concurrence, explained that the instruction properly

recognized the jury’s decision as ‘‘a moral inquiry into the culpability of

the defendant, and not an emotional response to the mitigating evidence’’

(p. 545). Even apart from the question of how juries are to distinguish

sympathy, mere sympathy, mercy and compassion, the larger point is

that the Court mistakes the nature of moral decision making. Whether a

juror votes to take or spare a life will depend in large part on empathy,

distancing, anger, blame and other emotional variables, and these variables

will constitute an essential component of his moral decision (Haney, 1997;

Sundby, 2005). When the juror tries in good faith to fit these moral and

Examining the Strange Persistence of the American Death Penalty 23