Is the Death Penalty Irrevocable? (Part One)

There are many criticisms of the death penalty, but among them is the charge that it is irrevocable. Once someone is dead, they’re dead. No amount of wishing, or hoping, or praying will bring them back to life. That much is obvious.

Why is this a problem? Well, if a system of punishment is to be morally legitimate then it should both (a) be supported by at least one morally compelling rationale; and (b) be capable of error-correction. We’ll ignore the first condition and focus solely on the second here. If people are punished, but kept alive, then, if it later turns out that the state was wrong in punishing them, the error done by punishing them can be substantially corrected. Thus, for example, a person serving a prison sentence can be released before their sentence is up and compensated for the damage done through money or other assistance. But this cannot happen if they are dead. If a person is wrongfully executed, the error in their sentence cannot be corrected.

This reasoning gives us an argument against the death penalty. The argument works from a general principle about the legitimacy of a system of punishment to a specific claim about the death penalty system. As follows:

• (1) In order to maintain legitimacy, the legal system should strive to abolish irrevocable/non-correctable, forms of punishment. 

• (2) The death penalty is an irrevocable form of punishment. 

• (3) Therefore, the death penalty should be abolished.

Call this the “Irrevocability Argument”. The argument is interesting in that it avoids any direct engagement with the purported rationales for the death penalty. In other words, the argument works even if individual death sentences can be fully justified on retributivist or consequentialist grounds. This is because the argument focuses on systemic failures in the imposition of punishment, and the need to correct for such failures, not on the moral justification of particular acts of punishment per se.

As interesting as it may be, we need to ask whether the argument is any good. To many, the truth of its premises will seem obvious. But, unsurprisingly, defenders of the death penalty have challenged it. Over the next couple of posts, I want to consider some of the arguments that have been made on this topic. I do so by using Benjamin Yost’s article “The Irrevocability of Capital Punishment” as my primary source. In this article, Yost addresses Michael Davis’s claim that, contrary to what you might think, the death penalty is indeed revocable. Although Yost ultimately disagrees with Davis’s view, he thinks there is more to be said in its favour than first appears.

In the remainder of this post, I’ll try to explain why Yost thinks this is the case. I do so by outlining Davis’s argument and then showing how it can be supported by the Pitcher-Feinberg theory of posthumous harms. In the next post, I’ll consider the problems with this theory, and Yost’s subsequent defence of the Irrevocability Argument.


1. Davis on the Revocability of the Death Sentence
As anyone familiar with the basic tenets of argument analysis will realise, there are two ways to challenge the Irrevocability Argument. The first is by rejecting the principle of legitimacy stated in premise (1); the second is by challenging premise (2)’s claim that death is irrevocable. Davis’s adopts the second approach, but it’s worth briefly considering why he doesn’t adopt the first.

In internet debates on this topic — and possibly elsewhere, I can’t remember — I’ve frequently seen people object to premise (1) on the grounds that no form of punishment is irrevocable. A person released from jail doesn’t magically get back the portion of their lives spent languishing in jail; nor does a person who’s hand gets chopped off as punishment suddenly get their hand back. Thus, if irrevocability is a good ground for abolishing forms of punishment, it supports the abolishment of all forms of punishment, not just the death penalty. Some might be happy with that conclusion, but most will deem it far too radical. Consequently, something must be wrong with premise (1).

Davis rejects this by distinguishing between two varieties of revocability:

Absolute Revocability: The person who was punished is restored to the exact same state they were in prior to being punished.

Substantial Revocability: The state makes good the wrong done to the person, they compensate the person sufficiently to outweigh or counterbalance the wrong done to them through punishment.

Davis accepts that no form of punishment could be absolutely revocable, since that would require an ability to mess with the laws of metaphysics (yes; meta-physics). Despite this, he thinks many forms of punishment could be (and indeed are) revocable in the second sense. And that’s all we need for legitimacy. Thus, for example, the person sent to jail for twenty years, could be restored to the community with more money and resources than they could have expected to earn in those twenty years. Obviously, this compensation will never return them to their pre-punishment state, nor will it restore to them every opportunity they could have expected to have over that twenty year period, but it can still do enough to outweigh the wrong done by their incarceration.

This is where Davis’s challenge to premise (2) comes into play. Following the reasoning just given he argues that, although the person who is killed cannot be restored to their previous state of being (as required by absolute revocability), they can be given sufficient compensation to repair the wrong done to them through execution.

No doubt this will strike many as a bizarre claim. But let’s hear Davis out before we pass judgment. His point is that although the physical body, and its attendant subjective experiences, may cease to exist at death, the personal biography associated with those things does not. Accepting that, he then argues that it is possible to both harm and benefit that personal biography after the death of the physical body. But if it is possible to both harm and benefit the personal biography after the physical death, it is at least possible (if not probable) that the personal biography can be sufficiently compensated. In which case, the death penalty would be substantially revocable.

This all sounds a little too nebulous at the moment. But as it happens, Davis’s basic idea is vindicated by one of the more popular philosophical theories of harm and benefit — the Pitcher-Feinberg theory — which holds that it is indeed possible to harm or benefit a person after they die. Let’s see how this works next.


2. The Pitcher-Feinberg Theory of Posthumous Harm/Benefit
First things first, the Pitcher-Feinberg theory is named after the philosophers George Pitcher and Joel Feinberg, both of whom advanced similar theories of posthumous harm/benefit. I’m reasonably familiar with Feinberg’s theory, having read his masterwork The Moral Limits of the Criminal Law a number of years back. In it, Feinberg advances an interest-based account of harm and benefit. According to this account, persons have interests and desires that they like to see fulfilled or satisfied. Thus, for instance, I have an interest in the development of my own career or in seeing that my children do well in life. Persons like me are harmed whenever they suffer some setback to their interests. This should be familiar territory to preference utilitarians.

Pitcher helps to crystallise exactly how this thwarted-interest account of harm supports a robust notion of posthumous harm. He does so with a thought experiment:

Mortal Metaphysician: Matt the metaphysician has spent his life developing an abstruse and technical metaphysical theory. He longs for his theory to become more widely known and accepted, but he records the details on chaotically stored notes in his apartment, and never publishes before his death. Now imagine two worlds:

World I: Matt dies, but his theory is discovered and widely promulgated after his death. Generations of undergraduate students are forced to analyse and evaluate its every detail.

World II: Matt dies and his apartment burns down soon after. As a result, his theory is neither discovered nor promulgated.

Now ask yourself: Which world is better for Matt?

Pitcher suggests that most people will say “World I” in response to that question. But in doing so, they tacitly acknowledge that the notion of posthumous harm and benefit makes sense. In World I, Matt’s interests and dreams are realised; it is a better world for him. In World II, his interests and dreams are thwarted; things go badly for him in this world. As such, he is posthumously benefitted in World I; posthumously harmed in World II.

And this is just one example. Others abound. Consider, for instance, the fact that many people think a person is harmed if their will is not implemented after they die, or if their organs are harvested after their death, contrary to their wishes. All these examples point to the plausibility of posthumous harm and benefit.

(Personal note: I struggle to share some of the intuitions canvassed here. While I acknowledge that many people think they would be harmed if their interests are not fulfilled after they die (for example, if their good name is undermined through defamation), I suspect that a large portion of those intuitions can be explained by a presumptive dualism about the body and the mind. If one is not a dualist, and works hard to rid oneself of dualist presumptions, the intuitive force of these examples may be lessened. Nevertheless, I leave my personal struggles to one side and continue with the elaboration of the argument)

If the Pitcher-Feinberg theory is right about the possibility of posthumous harm and benefit, then it could indeed provide succour for Davis’s view. But does it? This is not a foregone conclusion. Even if posthumous benefit was possible, it does not follow that the level of benefit could ever be sufficient to render the death penalty substantially revocable. This is where Yost steps into the fray, offering up a thought experiment which does seem to support the substantial revocability of the death penalty. Consider:

A single father works two factory jobs to ensure that his daughter can afford college. This labor reflects the fact that he has devoted his life to one purpose: making sure that his daughter has a better life than his own. Unfortunately, he has an incurable disease and knows he will soon die. Then the father is charged with, found guilty of, and executed for a murder he did not commit. After his execution, his innocence is discovered. The state exonerates him and proclaims his innocence in every media market, securing his reputation. The state then pays the man’s daughter one million dollars. (Yost, p. 6)

Since the father’s one lifelong interest was in securing a better future for his daughter, the posthumous award of one million dollars to his daughter does, according to the Pitcher-Feinberg theory, benefit him greatly. Furthermore, given the size of the award to his daughter, the vindication of his reputation, and the fact that he was going to die soon anyway, this posthumous benefit is probably sufficient to compensate him for the harm of the punishment.

Admittedly, the example might be a little unusual, but it’s not impossible and that’s all that matters. The irrevocability argument is, in large part, a conceptual argument: it claims that the death penalty is, in principle, irrevocable. A refined version that claims it is only de facto irrevocable could be formulated, but as an argument for abolishing the death penalty it would be considerably weaker. It would always be open to the death penalty proponent to argue that the system could be reformed so that only those for whom substantial revocation — along Pitcher-Feinberg lines — was possible would be executed.

In sum, if the Pitcher-Feinberg theory of posthumous harms works, and if cases akin to Yost’s single father example are plausible, we have a potentially significant objection to the Irrevocability Argument. As follows:

• (4) In order for a system of punishment to be substantially revocable, it must be possible to compensate people after their punishment such that the wrong done to them by the punishment is outweighed or counterbalanced by the compensation (Substantial Revocability principle) 

• (5) It is possible to compensate people (greatly) after they die. (Pitcher-Feinberg theory) 

• (6) Therefore, the death penalty is (in principle) substantially revocable.

As before, one can challenge this argument in two ways: (i) take issue with reduction of revocation to compensation in premise (4); or (ii) take issue with the Pitcher-Feinberg theory of harm/benefit in premise (5). Although Yost ultimately plumps for the first option, we’ll consider both in some detail the next day.