QUOTE: Cass R. Sunstein & Adrian Vermeule Is Capital Punishment Morally Required? The Relevance of Life-Life Trade-offs 58 Stan. L. Rev. 703 (Jan. 2006) – Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life trade-off, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment— potential error, irreversibility, arbitrariness, and racial skew—do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life trade-offs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.
AUTHOR 1: Cass R. Sunstein (born September 21, 1954) is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. For 27 years, Sunstein taught at the University of Chicago Law School, where he continues to teach as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration.
AUTHOR 2: Adrian Vermeule, who is a graduate of Harvard College and Harvard Law School, has been Professor of Law at Harvard Law School since 2006 and was named John H. Watson Professor of Law in 2008. He was a Visiting Professor of Law in 2005. His writings focus on institutional theory, and he teaches Administrative Law, Legislation, Constitutional Law, and National Security Law. Vermeule was on the faculty of the University of Chicago Law School from 1998 to 2005. There, he was twice awarded the Graduating Students’ Award for Teaching Excellence, in 2002 and 2004. Before entering teaching, he served as a clerk to Supreme Court Associate Justice Antonin Scalia and Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit.