I was shocked today to see that noted criminal justice scholar Dan Markel of Florida State University was killed over the weekend. His death is sending shockwaves through the US jurisprudence community, with an outpouring of support and condolences being to the blog he chaired, PrawfsBlawg.
Dan Markel was unquestionably American in his belief in liberal democracy and the freedom of the individual. His passionate but logical writings on the meaning and content of retributive justice have been immensely influential on my own thinking, even if I could not follow him all the way.
For Prof. Markel, retribution was desirable because it enabled criminal justice to perform two key functions: firstly, to recognise the offender's autonomy; and secondly, to preserve the dignity of the State's subjects by contesting and condemning the crime's implicit message that the offender is somehow freer than her fellow-citizens. Retributivism, in other words, explicitly upholds the liberal ideal of human dignity, and the democratic ideal of equality under the rule of law. It rejected disproportionate and inhuman punishments, such as those that explicitly attempt to shame and degrade the offender (Markel, 2001).
Markel favoured a 'condemnatory conception of retribution' (Markel and Flanders, 2010) that treated punishment as an expression of communal outrage and public rejection of the act, if not the actor. Punishment therefore represented an objective, political deprivation of liberty, whose values are set by the State as a representative of the vox populi. Somewhat utopian in his depiction of democracy, he would undoubtedly hold that the weaknesses, corruption, and distortion of truth in modern western democracies in practice do not detract from the fact that they are the best representatives available of the body politic and their opinions.
I differed from him drastically in this and other aspects of his conception of retribution, but I can recognise their indisputable internal logic, and the commitment to principle evident in his approach. Throughout the few articles of his that I have read, it is clear that Markel favoured retribution in part as a defence of the individual from the awful power of the State, and perhaps of the collective as a whole.
In his contribution to a long-winded battle between him, Chad Flanders and David Gray on the one hand; and Adam Kolber, John Bronsteen, Christopher Buccafusco, and Johnathon Masur on the other, he was keen and quick to point out the dangers of interpreting punishment subjectively. Individual offenders' foibles could not diminish the voice of the democratic public, which communicates not just to the offender but to the polity as a whole. Moreover, penal systems should not be encouraged to become merchants of pain delivery, an exercise that brings the State into an enterprise difficult to distinguish from mere sadism, which is likely to propel the scope and reach of the penal system far beyong the minimum necessary level of intrusion. Speaking in terms of pain, he argued, we encourage sadistic punitiveness. By remaining abstract - some would say naive - we suppress and minimise the violent urge towards fundamental rights contravention, and remain at least somewhat pure. (Markel and Flanders 2010; Markel, Flanders and Gray 2011).
This partial description of his outlook is further weakened by the fact that I know nothing about Prof. Markel personally - since hearing the news of his death I have learnt that he was Jewish, and that he was laid to rest in accordance with his faith on Thursday 24th. I hope that it served as solace to his loved ones. But all I can say for sure is this:
Dan Markel was a penal theorist with whom I both agreed and disagreed wholeheartedly. He was clearly committed to justice as a philosophical ideal, and had an idea of how to approach that ideal in a fair, just and even-handed way. Whether he was right or wrong, I admire him for his clarity and his conviction, perhaps the most important virtues of any academic. We will miss him for these and, I'm sure, many other reasons, but regardless of our spiritual beliefs, we can take solace in the fact that his ideas live on in his writings. So long as that remains the case, so too does he.
Ave atque vale, Prof. Markel. Alav ha-shalom.
Markel, D. (2001), 'Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate' 54(6) Vanderbilt Law Review 2157-2242.
Markel, D. and Flanders, C. (2010), 'Bentham on Stilts: The Bare Relevance of Subjectivity to Criminal Justice' 98(3) California Law Review 907-988.
Markel, D., Flanders, C., and Gray, D. (2011), 'Beyond Experience: Getting Retributive Justice Right' 99(2) California Law Review 605-628.
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