Articles & Chapters

Document Type


Publication Date



Lest it be cruel and unusual, the U.S. Supreme Court has held, capital punishment must be consistent with the evolving standards of decency of a maturing society. Although controversy swirls around our current sense of decency, this Society's changing standards are largely the product of deeply embedded traditions and an unchanging cultural core. Thus, virtually every heated death penalty debate today requires us not only to take the temperature of the people, but also to appreciate their temperament.

ROOTS: Resolving the Death Penalty: Wisdom from the Ancients reflects the current controversy back onto the core of Western Culture - the Old Testament and Ancient Greeks. The essay extracts values and lessons from the Ancients neutrally and honestly, although, perhaps because, the author is a retributivist who feels certain that the past counts, and that death is sometimes (but very rarely) rightful punishment.

Roots sets out objectively to reveal those standards of decency that do not, and will not evolve, but permanently inform our view of human dignity and what we owe the victim, the surviving family, thedefendant, and ourselves as a maturing but continuing culture. Ultimately, Roots provides abolitionists, as well as advocates, much support.

The first section offers a biblical reinterpretation: The condemnation of Adam and Eve as a death penaltyperhaps disproportional and definitely delayed; Cain - a marked man spared the death penalty; the Command of Genesis - by the hand of man shall his blood be shed; Abraham's challenge to God not to slay the righteous with the wicked; super due process in Deuteronomy - you shall inquire diligently . . . and only if it be true and certain; the incommensurable value of human life - you shall accept no ransom; inferring non-intentional culpable mental states - since he had not hated his neighbor in time past; depraved indifference recklessness - accustomed to gore . . . and its owner has been warned.

The second part of Roots considers many fundamental values independently embraced by the Ancient Greek lawgivers and philosophers: Odysseus-at-the-mast having placed it forever out of his power to be moved by a passion of the moment; blood pollution and the rejection of the blood price; restrictions upon the victim's family deciding the killer's fate; Pythagoras' program of proportionality, imposing rational limits; the reply of Heraclitus - you cannot step in the same river twice; the Sophists' relativism and subjectivity - man is themeasure of all things combined with their commitment to progress; Plato's contrary insistence on moral essences.

The last section draws on the wisdom of the Ancients to counter critics - abolitionists and advocates - from Justice Marshall to Justice Scalia that the U.S. Supreme Court's modern death penalty doctrine is ultimately incoherent. It suggests a jurisprudence of informed emotion - necessary and sufficient for a moral death penalty - which embraces consistency (treating like cases alike) while also incorporating the incommensurably rich uniqueness of every human being.


Chapter 6 in America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction 2nd ed at 169-231 (J.R. Acker, R.M. Bohm, & C.S. Lanier, eds., Carolinal Academic Press, 2003)