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209 8 Executing Retributivism Panetti and the Future of the Eighth Amendment Dan Markel Whom may a state execute? In Panetti v. Quarterman,1 the United States Supreme Court decided that only those defendants who rationally understand why they are being executed are in fact fit for capital punishment. This chapter argues that this purportedly narrow holding lays the groundwork for a new beginning of the Court’s death penalty jurisprudence. Specifically, I argue that Panetti understands retributive punishment as a form of humane communicative state action directed at the offender. What makes action communicative is that it is directed to a designated recipient in a way “meant to convey thoughts done through means reasonably recognizable as serving that end.”2 The action is undertaken in a way the sender of the message thinks will make sense to the recipient and is performed in a way that the thought conveyed can be made sense of, or effectuated, through the free will of the recipient.3 This communicative goal stands in contrast to more familiar instrumental approaches to punishment under which the defendant’s punishment serves as a vehicle through which it achieves the state’s other goals, including, but not limited to, the expression of messages to an undefined public at large.4 The communicative account of retribution evinced in Panetti sufficed to secure a remand for the defendant in that particular case. The Supreme Court, however, abjured from developing the theory beyond the needs of the case. Interestingly, Panetti’s counsel quoted three sentences from an earlier article of mine,5 which advanced a view of retributive punishment as communicative action.6 Thus, as it addressed Panetti’s claims, it is indeed possible that the Court was vaguely influenced by this notion while at the same time it understandably did not engage the more general and negative implications of the account for the death penalty.7 In other 210 Dan marKel words, by failing to dig deeper, the Court did not see—or did see and chose not to discuss—how such an account reverberates across the landscape of criminal justice. For death penalty skeptics, it should be significant that the Panetti majority gave reason to think that the defendant could be spared from execution .8 Indeed, the five justices forming the majority in Panetti have in recent years repeatedly placed new limits on who may be constitutionally eligible for execution.9 Importantly, some of them have not only restricted the classes of offenders eligible for execution, but also expressed doubts about whether anyone should be executed.10 Thus, once properly understood and embraced, the Court’s commitment to communicative retributivism in Panetti should trigger a dramatic change. Adhering to communicative retributivism necessitates rethinking the permissibility of the death penalty. That’s because communicative retributivism requires a punishment strategy that ensures the defendant has the opportunity to both internalize the values that animate retributive punishment and demonstrate that internalization over the course of his life. Thus, the logic of communicative retributivism cannot be limited to capital cases only involving those who are presently incompetent. In other words, a communicative account of retribution engenders leeriness about the use of the death penalty generally; it is not enough to serve simply as a mild restraint on killing certain categories of offenders, as the Court held in Kennedy v. Louisiana11 and Roper v. Simmons.12 This chapter’s argument unfolds in four parts. I begin by providing some background and analysis of the Supreme Court’s decision in Panetti and then turn to how the Panetti Court relied on specifically retributivist reasoning to embrace the “rational understanding” standard of competence . By selecting this course of reasoning, the Court committed itself, albeit implicitly and perhaps unwittingly, to a communicative conception of retribution. The second part explains how this communicative conception of retributive punishment stands in contrast with the Court’s earlier pronouncements on retribution, where the justices often conflated retribution with vengeance, social denunciation, or the minimization of private revenge. Importantly, this friction between competing views of retribution helps illuminate how the Panetti decision is possible only through adoption of a communicative conception of retribution. To comprehend the effects of the Court’s communicative conception of retributivism, we need a clear understanding of the key components of such an account, and the second part of this chapter provides a sketch of that account. The third part then explains how that account of retributive [18.221.129.19] Project MUSE (2024-04-23 13...

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