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Revisiting Death's Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process

Abstract Within the United States, legal challenges to the death penalty have held it to be a “cruel and unusual” punishment (contrary to the Eighth Amendment) or arbitrarily and unfairly enacted (contrary to the Fifth and Fourteenth Amendments). The Eighth Amendment requires that punishments not be disproportionate or purposeless. In recent rulings, the U.S. Supreme Court has adopted a piecemeal approach to this matter. In regard to particular classes of defendant, the Court has sought to rule on whether death is likely to be a proportional and purposeful punishment, as well as whether—given the condition of these defendants—such a determination can be reliably and accurately gauged. This article will suggest a different approach. Instead of asking whether, given the nature of certain categories of human defendant, the death penalty is constitutional in their case, I will begin by asking what—given the nature of the U.S. death penalty—one must believe about human beings for death to be a proportionate punishment. From this, I will argue that to believe that these penal goals are capable of fulfilment by the death penalty entails commitment to an empirically unconfirmable philosophical anthropology. On this basis, it will be further argued that the beliefs required for the U.S. death penalty's proportional and purposeful instigation (pursuant to the Eighth Amendment) are not congruent with the demands of legal due process.