Time, Death, and Retribution

Abstract

The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree with other scholars that this argument is incorrect. However, even if it is true that prisoner choice cannot make an otherwise unconstitutional sentence constitutional, Lackey claims can — and should — fail if the courts adopt a certain theory of retribution, what I call “intrinsic desert retribution”. Examining that type of retribution, distinguishing it from other retributive theories, and showing how intrinsic desert retribution can refute most Lackey claims, is one of this article’s major contributions. In doing so, it breaks with most of the scholarly literature, which tends to be sympathetic to Lackey claims. But the fact that Lackey claims may survive given a certain theory of retribution does not make that theory something the state may permissibly pursue. And this is the second major contribution of the article: to make the case that retribution may in fact not be a permissible state purpose. In short, Lackey claims do not fail because they are too strong — they fail because they are not strong enough. The Supreme Court has traditionally held that the state may permissibly put someone to death because of retribution. But the Court has also said, in other contexts, that the state may not pursue certain aims. The state cannot promote religion, for one; nor can it adopt policies based solely on “animus” against a certain class of persons. My article suggests that when the state adopts retribution as a goal in capital punishment, and pursues that goal even after years of delay, then retribution starts to look more and more like something that, while it may be morally right, cannot be a goal the state can legitimately pursue.