Wednesday, November 2, 2011

Brooks on Retributivist Arguments against the Death Penalty (Part Two)

(Part One)

This is the second (and final) part in a brief series of posts on Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is noteworthy for its attempt to identify an objection to the death penalty that is derived from retributive principles. This is noteworthy because retributive principles are more typically used to support the death penalty. The series of posts follows and builds upon Brook’s article.

Three things were accomplished in part one. First, the nature of the inquiry was clarified: for the sake of argument, we are assuming that death can be a just punishment in at least some circumstances. We are trying to figure out whether, despite this, there are still retributive reasons for objecting to the death penalty. On the face of it, this seems like a project that is doomed to failure: how can we hope to find an objection to something we already accept as being just? To see why this is not futile, we need to appreciate the distinction between the death penalty as a system of punishment, and the death penalty as a form of punishment in particular cases. The latter might be justified for retributive reasons, but the former might not.

The second thing that was accomplished in part one was the clarification of retributivism. Retributivism was defined as a theory of punishment that is committed to two key theses: (i) the intrinsic goodness thesis; and (ii) the proportionality thesis. The first thesis claims that punishment is, in some cases, an intrinsic good; the second thesis claims that punishment must be proportionate to the level of wrongdoing. Brooks added a third thesis to this: (iii) the distributional thesis. This thesis claimed that the purpose of retributive punishment was to correct for the unfair advantage that a wrongdoer gained through his/her act of wrongdoing. I argued that the inclusion of this thesis within the concept of retributivism was undesirable for a number of reasons, not least of which was that the “unfair advantage”-concept of wrongdoing seemed counterintuitive.

The third thing that was accomplished in part one was the dismissal of the racial bias argument against the death penalty. As we saw, the fact that the criminal justice system arbitrarily selects a sub-set of those who are actually guilty for execution is not a problem for the retributivist. All that matters from the retributivist perspective is that those who are executed are: (a) guilty of some crime; and (b) death is the proportionate punishment for that crime. Indeed, when confronted with the problem of racial bias, a retributivist is likely to call for more executions, not less.

Might they change their minds if those selected for execution were not guilty? That’s the question we’ll be considering today.

1. The Wrongful Conviction Problem
When I discuss the death penalty with people, the single most common objection I get to it is what I am calling the problem of wrongful conviction. My anecdotal experience is backed up by a recent opinion poll (Angus Reid, August 2011) in which 83% of respondents who objected to the death penalty did so on the grounds of this problem.

So what is the problem? It comes it two parts. The first part is the general problem of wrongful conviction for the retributivist. The second part is the specific problem of wrongful conviction for the retributivist defender of the death penalty. We’ll focus on the general problem for now.

The general problem can be phrased thusly: the criminal justice system has been known to wrongfully convict and punish people for their crimes. We have no reason to think that this trend of occasional wrongful conviction will not continue into the future. Retributivists only think punishment is justified when it is imposed on the guilty. Therefore, they would have to accept that at least some of the punishments dished out by the criminal justice system lack moral justification.

To put it more formally (numbering follows from part one):

  • (6) It is morally illegitimate to impose a punishment on someone who does not deserve it.
  • (7) The criminal justice system will, at least occasionally, wrongfully convict and punish an innocent person.
  • (8) Therefore, at least some of the punishments imposed by the criminal justice system will be morally illegitimate.

Let’s pause here for a moment to see where this might be going. The idea is that premise (6) should be acceptable to a retributivist. Punishment involves causing harm to another person. In general, causing harm is morally illegitimate. It only loses this illegitimacy if some justification can be found for it. A retributivist thinks such a justification can be found in the concept of desert for culpable wrongdoing. We’ve accepted this for sake of argument. But when there is no culpable wrongdoing, even a retributivist would have to reject punishment because of the harm it causes. Indeed, you could argue that this is a necessary component of retributivism.

Premise (7) seems to be well-supported. We have historical examples of wrongful convictions to draw upon to illustrate this. Perhaps the most conspicuous and persuasive set of data can be found in the work of the Innocence Project, but there are other examples as well (I always like to talk about the Guildford Four and the Birmingham Six in this regard). For all this, the number of wrongful conviction might be quite low, and there are those who would reject the idea that there will be any and I’ll need to talk about them later on.

Premise (8) follows straightforwardly enough, but it is relatively uninteresting in itself. What we really want to know is: what follows from the fact that at least some punishments will be morally illegitimate? After all, nothing in what has been said so far touches upon the death penalty. To get to some conclusion about the propriety of the death penalty, we’ll need to add some more premises to the argument.

2. Building Upon the Problem of Wrongful Conviction
Suppose we added the following premise to the preceding argument:

  • (9) We ought not to endorse any system of punishment that will, even if only on occasion, be morally illegitimate.

Then we would be forced to reached this conclusion:

  • (10) We ought not to endorse the criminal justice system (from 8 and 9).

But surely this would mean we had gone too far? Are we really going to abandon the entire system of punishment because there may occasionally be wrongful convictions? Some might be inclined to reach that conclusion, but I suspect that would be for reasons not presented in this argument. So for the majority of people (10) really would be too much.

But if (10) seems like too much, why do people point to the problem of wrongful conviction when discussing the death penalty? I mean, if wrongful convictions do not pose a problem for systems of punishment in general, why think they would pose a problem for the death penalty in particular?

To answer this, we must pay close attention to the differences between the death penalty and other forms of punishment. The chief difference, and the one I assume most people will point to, is the finality of death. If we kill someone who is innocent, we cannot try to make amends or recompense them for the ill effects of their punishment. They are dead and we cannot bring them back. On the other hand, if we wrongfully imprison somebody we can at least try to make some amends or offer some compensation to them.

This suggests the following argument to me:

  • (11) We can only endorse a system of punishment that is occasionally morally illegitimate if those who suffer from the ill-effects of that illegitimacy can be recompensed.
  • (12) Those who suffer the ill-effects of the death penalty system cannot be recompensed.
  • (13) Therefore, we cannot endorse the death penalty system of punishment (from 7, 11, and 12).

This argument prevents us from reaching the extreme conclusion of (10), but still manages to impugn the death penalty. What’s more, since the argument ultimately links back to premise (6), it works from principles that are acceptable to the retributivist.

It’s worth noting that I’ve made no reference to the “reversibility” or “non-reversibility” of particular forms of punishment in this argument. This is despite the fact that lots of people present pretty much the same argument using those terms. I’ve avoided them for the simple reason that some pro-death penalty advocates respond to those arguments by claiming that 20 years of wrongful imprisonment is no less irreversible than a death sentence. After all, you can’t give them back those 20 years. I think this is right, but that it’s irrelevant. The reason we should be more concerned about errors in the administration of the death penalty than we should be about errors in the administration of other forms of punishment is that there’s no opportunity to make amends or offer compensation to the person who was wronged in the case of the death penalty. Talk of reversibility is a needless distraction from the central moral issue.

3. Final Comments
So the problem of wrongful conviction, in its expanded form, provides one retributivist argument against the death penalty system. Is the argument ultimately persuasive? Well, that depends on how serious you think the problem of wrongful conviction really is. As it happens, some people don’t think its that serious at all.

For example, I’ve noted in some online forums, and even in some academic papers, that death penalty advocates will reject the notion that there has ever been a wrongful execution in the United States (no doubt there have been in other countries). The idea seems to be that, for all its delays and multiple appeals, the death penalty litigation system in the U.S. dramatically reduces the risk of wrongful conviction. Furthermore, improvements in forensic science are thought to reduce the risk even further. The challenge then is for anti-death penalty advocates to point to one case in which there has clearly been a wrongful execution. This challenge might be rhetorically effective, but, for all that, some risk surely remains. And maybe the risk is enough for the argument to go through.

Although my own opinions on the wrongful conviction argument are, no doubt, clear by this point, I will make one important concession to those who reject it. It is only a “in fact”-argument, not an “in principle”-argument. In other words, it only points to contingent reasons for the retributivist to reject capital punishment; it doesn’t provide any necessary reasons for rejecting it. It is possible to imagine a system in which there would never be wrongful convictions. How realistic that is, is another matter. I suspect we are long way from a perfect system, so I think the wrongful conviction argument will be with us for another while at least.


  1. Delighted to see these discussions on my article. See also my "Retribution and Capital Punishment" in Mark White (ed.), Retributivism (Oxford University Press, 2011) where I revise and extend my position.

  2. Thanks for comment Thom! I'll certainly try to get my hands on a copy of that chapter (if it's on the oxford e-book system I should be able to access it.)

    I see from reading your blog that you don't think distribution is part of retributivism. That wasn't clear to me from reading your earlier article. So apologies for attributing that view to you.

  3. One might be able to amend the retributivist argument with something like the following:

    11a. The criminal justice system must be able to revoke any mistaken sentence passed on a wronged individual.
    12a. A mistaken sentence of the death penalty cannot be revoked for a wronged individual, by the criminal justice system.
    13a. From 11a and 12a: the criminal justice system cannot pass a sentence of the death penalty.

    If this, or some similar but better crafted argument, could be made to work, one wouldn't have to defend the likelihood of a mistaken sentence in a given criminal justice system, just the fact that the system cannot, in any possible circumstance, revoke its sentence. If 11a holds, then the argument is pretty much there. I think.

  4. I like the idea, and I like your way of phrasing the argument, but I worry a little about the concept of revocability. What does revocability involve? Is revocability similar to reversibility? Or is it a distinct concept? If it's similar to reversibility, it might suffer from the problems affecting that concept (that I mention in the post). If it's distinct, I'd like to know more. (Also, is it distinct from my recompensibility concept?)

    One other thing, as I said towards the end, I accept that the argument might only need a minimal risk to go through. Indeed, now that I think about it we could probably appeal to some version of the precautionary principle to support the argument.

  5. Yeah, I see what you're getting at. Reversibility doesn't have the force necessary to make the argument work. One could reverse the sentence of the death penalty as a legal judgment, even though the punishment can't be undone.

    I guess revocability would have to equate to the withdrawal of the punishment. Not sure if this screws things up for the rest of the argument though. I dunno.