Susan Bandes

The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty

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.

The Negative Constitution: A Critique

In the conventional wisdom, the Constitution is a charter of negative liberties. Governmental inaction is not actionable. The due process clause grants no affirmative rights. These phrases are meant to signal the end of discussion. Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care. This article undertakes that scrutiny. Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

Remorse and Criminal Justice

A defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing. Yet there is currently no evidence that remorse can be accurately evaluated in a courtroom. Conversely there is evidence that race and other impermissible factors create hurdles to evaluating remorse. There is thus an urgent need for studies about whether and how remorse can be accurately evaluated. Moreover, there is little evidence that remorse is correlated with future law-abiding behavior or other legitimate penal purposes, and, in fact, there is evidence that remorse is often conflated with shame, which is correlated with increased future criminality. More accurate information on the nature and evaluation of remorse can be used to reform the criminal justice system.

The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial, and Due Process

In the 1980s hundreds of childcare workers were accused of sexually abusing children in horrific ways. Arnold and Jesse Friedman, whose prosecutions are chronicled in the film Capturing the Friedmans, were among those convicted and sent to prison during this period. Sociologists have called this series of prosecutions a classic moral panic: a widespread, hostile, volatile overreaction to a perceived societal threat. This paper examines the concept of moral panic in the context of the day care sexual abuse prosecutions in general, and the Friedman prosecutions in particular. It begins by exploring the role of the legal system in the construction of a moral panic, asking how a system which styles itself as rational and process oriented becomes the handmaiden of institutionalized hysteria. It then considers whether moral panic is a useful heuristic for understanding how justice was derailed in the Friedman cases and so many others, and what ought to be done to address the problem. It argues that the concept is limited in its ability to distinguish normatively between cases of overreaction and cases of institutional denial. Further, it suggests that, to the extent the concept of moral panic misconceives these periods of institutionalized hysteria as a series of isolated phenomena, it does not adequately address the deeply entrenched causes of injustice in cases like the Friedman prosecutions. The paper ultimately concludes that the concept of moral panic is useful because it reminds us of the cultural and historical contingency of notions of criminal justice and criminal deviance. Nevertheless, the concept has limitations that render it inadequate to address the hurdles to justice encountered in the Friedman cases. Most prominently, the concept is hindered by its retrospective nature. Like the question of guilt or innocence, the notion of moral panic is backward-looking, and therefore not well suited to addressing the prospective question of how the justice system can be reformed to dismantle ongoing, systemic hurdles to criminal justice. Law, Culture and the Humanities 2007; 3: 293—319

Law and Emotion

The field of law and emotion draws from a range of disciplines in the sciences, social sciences, and humanities to shed light on the emotions that pervade the legal system. It utilizes insights from these disciplines to identify and assess the implicit and explicit assumptions about emotion that animate legal reasoning, legal norms, legal doctrine, the behavior of legal actors, and the structure of legal institutions.

Compassion and the Rule of Law

This article, will will appear in the International Journal of Law in Contexts Special Issue on Law and Compassion, considers the tensions between compassion and the rule of law. Compassion poses difficult challenges for the rule of law. The compassionate response is often cast as a deviation from settled law rather than a principled application of it. Compassion so understood is troubling, most obviously because it poses a challenge to overall fairness, notice, and consistency. The invocation of compassion to justify law reform is also troubling. It implies that solutions to inequality and other injustices are a matter of charity and mercy, rather than a matter of correcting wrongs and expanding rights.I argue that compassion cannot serve as a reliable indicator of who should prevail in legal debates. I propose instead that compassion’s importance lies in its ability to illuminate for decision-makers what is at stake for the litigant. In this sense, compassion is closely tied to humility: both are reminders of human fallibility and of the limits of individual understanding. More fundamentally, compassion may serve as one of the core values informing the debate about the scope of individual rights and the proper role of government in protecting them.

Remorse, Demeanor, and the Consequences of Misinterpretation

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is little discussion of how remorse can be evaluated in the legal context. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Yet the most basic question about the evaluation of remorse has received little attention: is remorse something that can be accurately evaluated in a courtroom? This article argues that evaluation of remorse requires a deep assessment of character, or of the condition of the soul, and that the legal system may not be capable of such evaluation. At the same time, the article acknowledges that remorse is so closely intertwined with judgments of culpability, it may not be feasible to bar decision-makers from considering it. Assuming that evaluation of remorse is ineradicable, the question becomes: what can be done to improve upon an evaluative process riddled with error and bias?

The Idea of a Case

The Article III requirement that the federal courts decide only cases and controversies delineates the reach of the federal judicial power. The meaning of the case requirement is thus a primary issue of constitutional interpretation. Nevertheless, there is no overarching definition of a case. The Supreme Court treats the case requirement as a receptacle, filling it with specific doctrines as the need arises. Working from the outside in, the Court seeks to reach the central definitional issue by solving, ad hoc, the problems it poses. Scholars, too, tend to study the case limitation by examining only the doctrines it has spawned. The failure to define an Article III case has atomized the doctrines designed to implement the case limitation. This atomization leads to conflicting, unpredictable decisions and impoverishes the field by treating insights about each doctrinal area as nontransferable. Part I describes how the courts and commentators have failed to formulate a coherent definition of the case requirement. Part II examines the current assumptions underlying interpretation of the case limitation. Part III develops an idea of a case from the premise that the primary role of the federal courts is to enforce the Constitution. It then demonstrates that the resulting public law model produces a coherent vision of a case, and applies that vision to resolve the questions raised in Part I.

What Executioners Can—and Cannot—Teach Us About the Death Penalty

Those who work with the condemned often come to reject the death penalty not only in individual cases, and not only on the ground that it is poorly implemented. They tend to conclude that the punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and that indeed the perspective of those who work with the condemned raises the troubling possibility that support for the death penalty can survive only at a great remove. Jeffrie Murphy has also argued that the executioner’s perspective can be useful, but I contend that Murphy asks the wrong question. His essay considers whether an executioner may, under some circumstances, take pride in his work. The better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains, and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.