“Is Death Different?”

The title of this post is the title of this notable new paper authored by Jacob Bronsther now available via SSRN.  Here is its abstract:

This Article attempts to unite the movements against the death penalty and mass incarceration.  The central argument is that many noncapital sentences are in the same category of injury as the death penalty.  Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about these noncapital sentences.  In this way, I reject the premise of our Eighth Amendment jurisprudence that “death is different.” 

The Article first considers how exactly the death penalty harms a person, given the fact that everybody is going to die.  It argues that the death penalty moves up a person’s death date dramatically, likely by decades.  Given the sequential and progressive nature of human existence, such a loss of time grievously interferes with one’s unfolding life as a whole.  The early death promised by capital punishment means that one’s life will remain to some awful extent incomplete, without the fruition or redemption that the future years may have had in store.  The Article then demonstrates that certain prison sentences –– especially but not only decades long sentences –– harm individuals in a similar manner.