Greg Marcar is a Research Affiliate at the Center for Theology and Public Issues at the University of Otago, where he is also a Teaching Fellow within the Theology program. Greg is a 2019 alumnus of the ICLRS Religion and the Rule of Law Young Scholars Fellowship Program.

This post is derived from Marcar’s article “Revisiting Death’s Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process”, British Journal of American Legal Studies | Ahead of Print, 21 April 2020.

Introduction

Few judicial issues are as polarising in the U.S. as the death penalty. Akin perhaps to abortion, attitudes towards capital punishment can often approximate a litmus test for liberal and conservative dispositions. For many of its legal and political opponents, the death penalty is a quintessentially disproportionate punishment, and thus contrary to the Eighth Amendment’s prohibition on “cruel and unusual punishments.” For many of its supporters, the death penalty is not only congruent with the Eighth Amendment (particularly under a historically-focussed “originalist” reading);[1] it also instantiates the moral principle that those who commit the most horrendous acts within society must face the ultimate sanction. Between these positions, the possibilities for mediation appear slim. This is also true within religious thought, where assertions concerning the dignity of every human being and the value of forgiveness are often mirrored by equally forceful assertions concerning the sanctity of human life and the need for a retributive punishment of murderers which reflects this sanctity.[2] (more…)