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40 Harv. C.R.-C.L. L. Rev. 407 (2005)
State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty

handle is hein.journals/hcrcl40 and id is 413 raw text is: State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty Dan Markel* In the aftermath of Governor Ryan's decision in 2003 to commute the sen- tences of each offender on Illinois'death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributiv- ist perspective, an unmitigated moral disaster This Article contests that position, showing not only why a commutation of death row is permitted un- der principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountabil- ity and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributiv- ism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure. TABLE OF CONTENTS L Introduction .............................................................................. 408 II. What's Wrong with a Blanket Commutation of Death Row? ....... 416 A. An Unlawful Abuse of Power ................................................ 417 B. Improper Reliance upon Mercy ............................................ 418 1. Mercy as Imperfect Obligation ......................................... 418 2. M ercy as Equity ............................................................... 419 3. The Implications of Mercy for a Blanket Commutation .... 419 C. The Significance of Victim Interests ...................................... 421 D. Moral Desert and Capital Punishment ................................. 422 Assistant Professor, Florida State University College of Law. J.D., Harvard Law School; M.Phil., University of Cambridge; A.B., Harvard College. I am grateful to Austin Sarat, who accelerated my thinking on the issues raised here by inviting me to speak on sovereignty and clemency at the May 2004 Law and Society Conference in Chicago; to several law faculty workshops; to Annalise Acorn, Josh Berman, Jennifer Collins, Chad Flanders, Steve Garvey, Sarah Harding, David Hoffman, Orin Kerr, Avery Kolers, Ethan Leib, Wayne Logan, Chris- tine Magdo, Mary Ann McGrail, Jay Michaelson, Marc Miller, Julian Davis Mortenson, Chris Park, JJ Prescott, Matt Price, Bo Rutledge, Jonathan Simon, Lloyd Weinreb, Bob Weis- berg, and Ron Wright for comments and conversations; to Mary McCormick and her col- leagues in the FSU Law library for wonderful assistance; and to the editors of this journal, for their patience, diligence, and intellectual engagement. The title is derived from John Donne's sonnet that begins Death, be not proud. Comments: markel@ post.harvard.edu.

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