"State, Be Not Proud"

FSU law prof (and Prawfsblawgger) Dan Markel has posted an interesting paper on SSRN, "State, Be Not Proud:  A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution."  Here is the abstract:

In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly; the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure.

Dan's is, in my view, a very important argument.  As I see it, retributive justice (properly understood) is the primary end of, and justification for, "punishment."  It is unfortunate that Christian thinking about punishment often runs along a "retribution bad, rehabilitation and restoration good" line -- see, e.g., the statement by the United States Conference of Catholic Bishops, "Responsibility, Rehabilitation, and Restoration."  (Rehabilitation and restoration are good, of course.  But it is a criminal's moral desert that, as I see it, justifies punishment.)  The best arguments against the death penalty, I think, are those that -- like Dan's -- proceed from retributivist premises, which strike me as being more consonant, in the end, with the dignity of the human person.  (I flesh out this view a bit more here.)