Playing God: An Essay on Law, Philosophy, and American Capital Punishment

Abstract

This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme Court has upheld the practice of allowing capital sentencers to consider predictions of future dangerousness despite the unreliability of predictions. In each case, Jewish law and world-view acknowledge the inadequacy of human decision and reserve these judgments for God alone. The Supreme Court's response to such inescapable difficulty and danger of error appears, in effect, to ignore the absolute difference between the death penalty and other forms of punishment.

Keywords: death penalty, capital punishment, Jewish law, sentence, sentencer

JEL Classification: K14, K49