The Nebraska Death Penalty Study: an Interdisciplinary Symposium

• Publication year: 2021

81 Nebraska L. Rev. 479. The Nebraska Death Penalty Study: An Interdisciplinary Symposium

479

Robert F. Schopp

The Nebraska Death Penalty Study: An Interdisciplinary Symposium

Introduction

The four papers presented in this symposium reflect upon and develop the data presented and the concerns raised during a public panel at the University of Nebraska in February 2002. That panel and this symposium were organized to promote public discussion of and reflection upon an empirical study that examined the death penalty as it has been applied in Nebraska during the last quarter of the twentieth century.(fn1) Those who support the death penalty, those who oppose it, and those who remain uncertain should agree at least on the following proposition. The death penalty raises some of the most important and perplexing moral, political, and legal questions that a society and its citizens of good conscience must confront. We partially define our lives, individually and collectively, by the manner in which we address the central questions of personal and political morality that we encounter. We define ourselves partially by the positions we take regarding these questions but perhaps even more fundamentally by the manner in which we pursue the inquiry through which we develop these positions. Thus, the manner in which we confront, examine, and attempt to resolve the ongoing debates regarding the death penalty constitutes an important component of the individual and collective lives we live.

The ongoing debate about the legitimacy of the death penalty can be understood as addressing at least three distinct evaluative questions. First, is the death penalty constitutional? Does if fall within the range of criminal punishments that the United States Constitution recognizes as within the legitimate authority of the state or federal governments to impose? Second, is the death penalty morally justifiable? Although the Constitution places legal limits on the criminal punishments that fall within the authority of our criminal justice systems, constitutional legitimacy does not entail moral justification.

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Those who accept the proposition that the Constitution allows capital punishment must confront the moral questions regarding the justification of capital punishment as an institution and regarding the legitimacy of the various roles that individuals must fulfill in such an institution. Third, is the death penalty prudent? Does it serve the interests of the citizens individually and of the citizenry collectively to maintain an institution of capital punishment? Those who accept the propositions that capital punishment is constitutional and morally justifiable must also ask whether maintaining such an institution imposes costs on society or on individual members of that society that provide good and sufficient reasons to refrain from imposing the death penalty.

Conscientious inquiry into each of these questions requires a complex analysis that can include a variety of empirical issues. When a fragmented Supreme Court overturned death sentences handed down under statutes that allowed sentencers to exercise unguided discretion, several of the opinions emphasized the risk of arbitrary and discriminatory sentencing under such statutes.(fn2) The Court later approved capital sentencing statutes designed to guide sentencer discretion in a manner intended to reduce the risk of arbitrary or discriminatory sentences and to promote sentences consistent with legitimate penal purposes, including deterrence and retribution.(fn3)

Empirical questions relevant to the constitutional inquiry can vary with the identified legitimate penal purpose. If a sentencing provision is intended to deter capital crimes or crime generally, for example, empirical study might increase our understanding of the degree and manner in which capital sentencing deters some individuals from committing such...