I just participated in an interesting Eighth Amendment conference sponsored by the University of Pennsylvania Journal of Constitutional Law. (Doug Berman was there, among distinguished others, and previoulsy blogged about it here.) Lots of interesting issues surfaced over the course of several panels and many informal chats. I'm going to try to touch on a couple of the issues in individual blog posts over the next few days.
Readers of Sentencing Law and Policy know that Doug believes that the intense scrutiny about the death penalty - among both commentators and litigators - is grossly disproportionate to it's actual impact and has the effect of skewing criminal justice debates and undermining many other needed reforms. As a former public defender, I suspect that I weight the effects of individual draconian sentences on individual defendants more heavily than Doug, even though I fundamentally agree: the death penalty is barely the tip of the iceberg when it comes to criminal justice dysfunction.
Doug argues that the legal academy bears some of the blame for this. He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes. And Sharon Dolowich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections. Doug contends that this reflects the preferences of law faculty - who find the death penalty a glossy and compelling issue - and also serves to reproduce this view of the world on the part of students. He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like. I have a different take on this.
I agree that law schools should offer more sentencing courses. But I question whether the death penalty is best understood only by reference to the relatively small number of people facing the sanction. I think that a study of capital punishment inevitably implicates other big issues: how we understand the state's permissible role in killing; the quantum of reliability required for serious sanctions (including the under-discussed and horrendous Life Without Possibility of Parole sentence); the quality of lawyering in the country and our nation's place in the international community. Jordan and Carol Steiker contend that when we frame these issues in the context of death cases, we may skew how courts deal with these matters. But for now, a serious study of the social impact of the criminal law - to say nothing of the relationship bewtween courts and legislative majorities - requires some attention to the death penalty.
My conclusion: keep the death penalty classes, add other courses, and make sure that all of these courses place punishment in social context.