This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotions aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making, but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined.
Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective
Anthony Walsh is professor of criminology and statistics at Boise State University. He received his doctorate for Bowling Green State University in Ohio. His major research interests are biosocial/evolutionary criminology and the philosophy of law. He has published many books and articles on these topics. Department of Criminal Justice, Boise State University, Boise, Idaho 83725, 208-426-3240, firstname.lastname@example.org
Virginia Hatch is a full-time investigator with the Federal Public Defender’s office, a volunteer with the Innocence Project, and an adjunct professor at Boise State University where she teaches a variety of classes, including on the death penalty. She is the author of a book on the death penalty (with Walsh) published by Oxford University Press. Department of Criminal Justice, Boise State University, Boise, Idaho, 83725, 208-871-3559, email@example.com
Anthony Walsh, Virginia L. Hatch; Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective. New Criminal Law Review 1 May 2018; 21 (2): 267–290. doi: https://doi.org/10.1525/nclr.2018.21.2.267
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