This brief series is inspired by Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is interesting for its attempt to present a solid retributivist argument against the death penalty. And this is interesting because retributivist arguments are usually used to support the death penalty.
I say this series is “inspired” by Brooks’s article because I’m not going to directly follow everything Brooks’s has to say. He focuses his attention on arguments offered by specific theorists (McDermott and Nathanson) and considers some competing interpretations and constructions of what they say. I’m going to focus purely on the arguments I found to be most interesting, and, in addition, I’m going to speculate and expand upon on some possible responses that are not covered by Brooks.
I’m going to spread the discussion over two posts. In this post, I will present the basic retributivist argument in favour of the death penalty and I will comment on some of the different definitions of retributivism. I will then discuss the racial bias-argument against the death penalty. In the next post, I will discuss the uncertainty-argument against the death penalty. This is the argument that Brooks finds most attractive because of its appeal to retributivist principles. Finally, again in the next post, I will discuss a range of responses to the uncertainty-argument.
1. The Retributivist Argument in Favour of the Death Penalty
I’ve presented this argument in a previous post, but in order to make this post as self-contained as possible, here is the basic retributivist argument in favour of the death penalty:
- (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.
- (2) Death is the proportionate punishment for those who are guilty of some crimes.
- (3) Therefore, it is right and proper for those who are guilty of some crimes to be put to death.
Since the focus in this post is on retributivist arguments against the death penalty, we are going to assume the truth of premise (1). That is to say, we are going to assume that retributivism is a morally defensible theory of punishment. As it happens, this is not an assumption I’m generally inclined to make. But I’m willing to make it here in order to see the different conclusions that can be derived from a retributivist principle. In addition to this, we are going to assume that (2) is, on at least some occasions, true. In other words, we are going to assume that death *can* be a proportionate punishment. As against this, we are going to consider the possibility that there are, nevertheless, good retributive reasons for thinking that the death penalty system ( i.e. the legal machinery used to impose the death penalty) is illegitimate.
This raises the question of what exactly do we mean by “retributivism”. Up to now I’ve been holding that retributivism is made up of two key theses:
The Intrinsic Good Thesis: Punishment of those (and only those) who engage in culpable wrongdoing is an intrinsic good, i.e. it is good apart from any positive or negative consequences that might flow from it.
The Proportionality Thesis: Punishment is only justified when the punishment is proportional to the crime.
But Brooks’s mentions a third thesis of retributivism (although note: he doesn’t actually explicitly mention the other two, though I think something like them is implied by what he says). This thesis has to do with the purpose of retributive punishment:
The Redistribution Thesis: Punishment is designed to take away the unfair advantage gained by the person who broke the rules.
While this thesis has some attractive features — I particularly like how it links punishment to distributive justice, but why I like this is a story for another day — I have some concerns about it. These concerns may seem petty at first glance, so I need to articulate them carefully.
My chief concern with the redistribution thesis is my uncertainty over the role that the thesis plays in the justification of retributive punishment. The other two theses clearly have a role to play in justification. Together, they imply that punishment is only justified when it is (a) limited to those who are guilty and (b) proportionate. Do we add to this a further requirement that punishment is only justified if it takes away the unfair advantage? It’s not clear because Brooks’s speaks only of redistribution as being the “purpose”, not the justification for retributive punishment. This may seem like a slightly pedantic point, but I think there is a real need for clarity here since there is a whole other theory of punishment — called the “restitutionary theory” — that would seem much more comfortable with the redistribution thesis.
Also, I wonder whether the redistribution thesis “stacks the deck” against the death penalty. After all, killing someone seems a bit excessive if the goal is merely to take away the unfair advantage they gained by committing a crime. So it would seem like the death penalty automatically fails the redistribution test. I wouldn’t like to stack the deck against the death penalty here since the goal of this exercise is to discover whether there are any good retributive reasons against the death penalty: to include within the definition of retributivism a criterion that automatically excludes the death penalty would defeat this goal.
Finally, I’m not sure that “unfair advantage” is the best concept to employ when it comes to understanding criminality, particularly the kinds of criminality traditionally covered by the death penalty. For example, is it really true to say that someone who rapes and murders a child thereby gains an “unfair advantage” over those who do not? Surely not. To say that something has bestowed an “unfair advantage” is to signal a positive attitude toward that thing: it is to say that the person who has gained it has gained something that we ourselves would like to have. But then it would follow that, in order to endorse the redistribution thesis, we would have to believe that raping and murdering children is a positive thing. Since this is clearly not what we believe, it must be wrong to say that this kind of criminality bestows an unfair advantage. (It’s possible that other forms of criminality do.)
For these reasons, I’m inclined to leave the redistribution thesis out of the definition of retributivism. As it happens, I don’t think this will impinge upon the remainder of the discussion.
2. The Racial Bias Argument
A popular argument against that death penalty system holds that because the system is racially biased — i.e. because you are more likely to be executed if you are an African American — it is morally illegitimate. As it happens, I’m not sure whether this racial bias actually exists. (I imagine it does, but I’ve read studies suggesting that the race of the victim plays a greater role in determining who gets sentenced to death than does the race of the defendant.) But I don’t really care for the purposes of this blog post. As was the case with the truth of retributivism, I’m going to assume it’s true and see what follows.
The racial bias line of reasoning is particularly popular in the United States, mainly for constitutional reasons. Now, I’m no scholar of the US constitution, but I know there is an amendment — the 14th — which includes a statement about “equal protection of the law”, and I know that this amendment has been called into service in arguments against the death penalty on racial bias grounds (see McCleskey v. Kemp for an unsuccessful example of this).
But we’re not interested in these legal arguments; we’re interested in moral arguments. To be precise, we’re interested in retributivism and whether the racial bias argument can provide a retributivist reason to reject the death penalty. To investigate this we need first to figure out the reasons why racial bias is thought to make the death penalty morally illegitimate and then we need to see whether these reasons are in any way connected to retributivism.
One reason we might have a problem with the bias is that the bias might lead to erroneous legal decisions, i.e. it might result in people who are not guilty of wrongdoing being mistakenly selected for execution. We’ll leave this possibility to the side for one moment, since we’ll consider a separate argument based on this problem in a moment. This means we’ll assume that, despite the bias, it’s still only guilty people that are selected for execution. The problem is that it’s just a subsection of those people that are being selected. Stephen Nathanson uses the following analogy to make the point:
Suppose there is a highway patrol officer who rightly identifies everyone that is guilty of speeding, but only selects from those people the bearded ones for speeding ticks.
Does this seem wrong? Nathanson thinks so, and I’d be inclined to agree. To use an arbitrary criterion like the presence or absence of facial hair to pick who suffers for the legal consequences of their acts definitely seems morally circumspect. Applied to the death penalty system, the analogy works like this: to arbitrarily select only those guilty persons with a particular skin colour is morally circumspect. But is this because it is incompatible with retributivism? Consider the following:
- (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.
- (2) Death is the proportionate punishment for those who are guilty of certain crimes.
- (4) Because of racial bias, the death penalty system only selects an arbitrary subset of those who are guilty for execution.
- (5) Therefore, the death penalty system is illegitimate.
The first two premises here are just taken from the original argument. They are the bedrock of the retributive theory under examination. Premise (4) is new and states explicitly the problem of racial bias. (5) then is the conclusion that proponents of the racial bias argument would like us to reach, but does it follow from the premises? Clearly not. A retributivist thinks it is right and proper for the guilty to be punished. The mere fact that a subset of the actually guilty are arbitrarily selected for execution by the legal system is not enough reason to reject the legal use of execution. After all, the guilty are still being punished appropriately. It’s just that not all of them are.
To sum up, the problem of racial bias provides no retributivist reason for rejecting the death penalty system. Confronted with the problem, the retributivist can easily turn around and argue that it merely provides reason for executing more people. If we think the racial bias problem does provide reason for rejecting the death penalty system, this is because we are adopting a non-retributive principle for evaluating the system.
In part two, we’ll see whether a retributive argument against the death penalty system is possible.
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