by Matt Barr

Bork on Roper

In the March 28 National Review, Judge Bork adds his to the chorus of voices denouncing Roper. In doing so he had some things to say about retribution, the theory of punishment discussed here recently and at length by Prof. Volokh, including this new post today. Judge Bork:

The Court majority once more exhibited for all to see that dazzling combination of lawlessness and moral presumption which increasingly characterizes its Bill of Rights jurisprudence....

Trying its hand at psychology, the Roper majority argued that neither deterrence nor retribution supported the death penalty for killers under the age of 18.... Retribution was discounted on the theory that young killers, apparently without exception, are less culpable than presumably more thoughtful adult murderers. The Court ignored the fact that juries, unlike the Court, do not decide such issues categorically but by evaluation of the individual and must take youth into account as one mitigating factor.

Retribution was also ruled out without considering its indispensable role in the criminal-justice system. The mixture of reprobation and expiation in retribution is sometimes required as a dramatic mark of our sense of great evil and to reinforce our respect for ourselves and the dignity of others. None of this was examined by the Court. Its steady piecemeal restriction of the death penalty -- now "reserved for a narrow category of crimes and offenders" -- suggests that the Court is on a path to abolish capital punishment altogether even though the Constitution four times explicitly assumes its legitimacy.

It is precisely judgments like "great evil" that the political opposition (as distinguished from principled moral opposition, which deserves great respect) to the death penalty is keen to avoid.

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