Works in Progress Group 17: Criminal Law: Issues of Punishment

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Group 17: Criminal Law: Issues of Punishment 

Violence in the Absence of the Word  

Nathan Rouse, NYU 

This Article attempts to address the difficulty in articulating a legal narrative around the use of restraint chairs in American jails and prisons. Restraint chairs are in relatively common use as a tool of punishment and control, but they are not legislatively authorized, have no clear path to be addressed in litigation around a criminal case, and almost entirely escape scrutiny under the Eighth Amendment due to doctrinal complexities. People have been immobilized in restraint chairs for days at a time without their use being held unconstitutional. Their users purport not to be punitive or violent at all, but instead portray them as medical devices being used to maintain order in an institution. This Article wrestles with the question of how the practice of strapping people to chairs has proliferated without legal analysis or authorization. In its current form, it uses the analytic framework of Robert Cover's classic article Violence and the Word to examine this disjunction between violence and articulation. Cover's framework predicts greater articulation in cases of greater violence, but the restraint chair is a powerful tool for the creation of suffering which has avoided scrutiny. This violence is occurring in secret, posing as non-violence, and evading interpretation. Ultimately, I conclude that the system of legal interpretation has avoided the restraint chair so aggressively because the violence is not justifiable, even in the criminal legal system's own harsh terms. This violence is only possible in the absence of the word. 

The Federal Death Penalty as a Sign of the Times  
Ngozi Ndulue, Duke 

From its reinstatement in 1988, the federal death penalty has accounted for a small portion of the U.S. capital punishment landscape but has had an outsized role in the national imagination. In the last five years, we have entered a new era in the federal death penalty’s history, framed by the Trump execution spree, the Biden commutations, and substantial uncertainty about what the future holds for capital punishment across the U.S. In this transitional moment, understanding the modern history of the federal death penalty can provide essential lessons about what is to come.  

In this article, I review the evolution of the modern death penalty and argue that recent developments have moved the federal death penalty from being a laggard to being a leader in national death penalty trends. In Part 1, I discuss how the federal death penalty has developed since 1973. In Part 2, I discuss concerns about the constitutional administration of state death penalty regimes and the extent to which these concerns are applicable to the federal death penalty. In Part 3, I discuss the ways that recent developments in the federal death penalty are plotting pathways for state death penalty regimes. I conclude with choices faced by legislators, prosecutors, and policy makers that could contribute to possible divergence from these pathways and that could lead to a radically different death penalty in the federal system and the states.