“Due Process or Penological Purpose: Re-evaluating Retributivism in Light of Procedural Reliability and Fairness”

The title of this post is tht title of this new paper authored by Lucas Brolin that I just came across via SSRN. Here is its abstract:

Capital punishment presents an inherent tension between due process and retributive justice: When inflicting death, we strive for a just punishment, but also seek fairness and reliability in procedure. However, it is questionable whether these competing interests can coexist.  This paper addresses the mounting evidence of capital punishment’s procedural failures and questionable penological merit. It argues that the death penalty’s sole justification is retributivism; however, that retribution’s purposes are frustrated by constitutional requirements of due process.  Thus, a purportedly proportionate punishment is mutated into one that exceeds just desert and causes collateral harm repugnant to retributivism’s tenets.  Legislative endeavors to streamline capital proceedings, such as AEDPA, have failed to resolve this fundamental tension.  Revealed is an inescapable dilemma: An American death penalty system cannot mutually satisfy both legitimate penological purposes and constitutional demands for procedural fairness and reliability, suggesting that the death penalty is unconstitutional in either form.