Some Memories of Dan Markel

I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.

Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.

For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.

Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.

I will miss him very much.