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. Defenders of the death penalty, on the one hand, will be hard pressed to establish that, at least as it is currently administered, it is not weighted down with aspects that are not merely inadequate to satisfy a consequentialist, but perhaps are beyond the scope of what we can accept as rational, even under retributivist theory. Abolitionists, on the other hand, will be challenged by the apparent need of society for ritualized community violence. In other words, is abolition possible without the creation of some alternatives to satisfy a powerful social need, regardless of whether rational or nonrational foundations form the bases for that need?
Part I of this Article gives a necessarily brief overview of Supreme Court death penalty jurisprudence over the last decades, focusing on the main lines of consequentialist and retributivist argument put forward by abolitionists and death penalty proponents. Part II explores the ultimate inability of either consequentialist or retributivist arguments to explain significant parts of current death penalty jurisprudence satisfactorily. Part III sketches Girard's theories of mimetic violence and the role of the scapegoat, and applies these ideas to explain the role of the death penalty in American society. Finally, Part IV discusses the implications of accepting an explanatory model based upon Girard's thought for the future of the death penalty debate.
THE DEATH PENALTY AND THE SUPREME COURT: A BRIEF HISTORY
The Eighth Amendment provides that the federal government may not impose "cruel and unusual punishments."(15) More broadly, the Fifth Amendment provides that no person may be "deprived of life, liberty, or property without due process of law."(16) The Fourteenth Amendment extends the due process guarantee to the states, and the Supreme Court has held that the Eighth Amendment is incorporated in that guarantee, and thus also binds the states.(17)
Before the 1960s, the Supreme Court considered a number of issues regarding the procedure under which the death penalty was imposed, but did not seriously entertain the argument that the penalty was itself unconstitutional.(18) In 1889, the Court rejected the argument that the new electric chair was a cruel and unusual means of imposing the death penalty,(19) and in a grisly 1947 case, a sharply divided Court held that it was not cruel and unusual to electrocute a murderer a second time when the chair malfunctioned and delivered an insufficient shock the first time.(20) In 1931, however, the Court held that a defendant facing the death penalty was entitled, as other criminal defendants at the time were not, to appointed counsel.(21)
In 1963, Justice Arthur Goldberg circulated a memorandum to his colleagues urging that the Court select several cases for review as vehicles to determine "[w]hether, and under what circumstance, the imposition of the death penalty is proscribed" by the Constitution.(22) In light of the abolition of the penalty by most western democracies and declining public support at the time within the United States, Justice Goldberg contended that the issue was ripe for consideration.(23) He also stated that in his opinion, the death penalty had to be justified as an effective deterrent, because vengeance was not "an acceptable goal of punishment."(24) Justice Goldberg's memorandum did not persuade the Court to grant review, but it generally is regarded as the starting point of the contemporary history of the Court's struggle with this issue.
Between 1963 and 1972, the Supreme Court considered several death penalty cases, rejecting challenges based, both upon the absence of clear standards to guide juries in choosing the penalty(25) and upon the need for bifurcated proceedings to address guilt and punishment.(26) Several Justices dissented, however, and, for the first time, significant abolitionist sentiment appeared in the pages of the United States Reports.(27) During this period, state courts in California(28) and New Jersey(29) ruled that the death penalty violated state constitutional provisions.
Finally, in 1972, the Court invalidated the death penalty as applied under then-existing statutes.(30) Furman v. Georgia was decided not only by the narrowest of margins, but also featured five separate opinions from the five Justices in the majority.(31) Justices Brennan and Marshall found the death penalty to be unconstitutional per se;(32) Justices Douglas, Stewart, and White found that its application was arbitrary and discriminatory, but did not go so far as to state that death penalties could not be framed in a way that would satisfy constitutional standards.(33)
The connecting thread running through the five opinions was the principle that punishment must be rational.(34) Although death penalty litigation often is thought to revolve around the Eighth Amendment, the Due Process Clauses of the Fifth and Fourteenth Amendments also imply this primary requirement of rationality.(35) The basic test of the rationality of a government act is determining whether it relates to achieving a legitimate government end.(36) Inquiry must begin, then, with an inventory of the legitimate ends of punishment. The most commonly noted purposes of punishment are incapacitation,(37) deterrence of others,(38) rehabilitation of the offender,(39) and retribution--the most difficult to define clearly.(40) Certainly, a punishment that accomplished none of these goals would be vulnerable to attack as irrational. Because criminal punishment is an explicit concern of the Eighth Amendment, one would be justified in demanding, if not the extremely close fit between means and ends that strict scrutiny demands, then at least something more than a minimum suggestion of rationality.(41)
To Justice Brennan, punishment became arbitrary, and thus unconstitutional, when it exceeded the severity necessary to achieve any of the accepted goals of punishment.(42) The death penalty...