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

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(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.

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

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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.

The Ethics of the Death Penalty (Part One)

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As promised last week, this is the first in a series of posts on the ethics of the death penalty. As with the applied ethics posts from earlier in the summer, the series will track closely the essays in the book Contemporary Debates in Applied Ethics . This book is organised around groups of “pro” and “con” articles on a number of controversial ethical issues.

First up for our consideration is Louis Pojman’s pro death penalty article. I’ve been reading around the death penalty issue quite a bit recently, and from what I’ve read it seems like Pojman is one of the leading contemporary defenders of capital punishment.

He makes his case for the death penalty by adopting an uneasy alliance of retributive and consequentialist arguments. I say this alliance is uneasy because, as I will suggest towards the end of my analysis, the arguments can pull in opposite directions. This creates something I will refer to as the “Death Penalty Dilemma”.

More on that later, for now let’s just give Pojman’s arguments the chance to breathe.


1. The Basic Contours of the Death Penalty Debate
We need to get some perspective on the death penalty debate first. The death penalty is a particular kind of punishment that is usually reserved for those who have committed the most heinous crimes (the actual number of “capital offences” can vary from jurisdiction to jurisdiction). Punishment is the intentional infliction of harm (usually with state backing) on another human being, in response for something they have done. Harm is typically deemed to be morally unjustified, but harm done in the name of punishment is different because punishment is thought to be morally justified.

There are two basic positions one can adopt when trying justify punishment. The first is to adopt a retributive justification; the second is to adopt a consequentialist justification. The retributivist claims that harming those who engage in culpable wrongdoing is an intrinsic good, i.e. something that is good in and of itself. The consequentialist claims that harming those who engage is culpable wrongdoing serves any number of morally justifiable ends, such as deterring future wrongdoing, rehabilitating the offender or protecting social order. These justifications have different temporal modes. The retributive justification is backward-looking: it focuses on what the offender actually did and what the most appropriate response to that past action is. The consequentialist justification is forward-looking: it focuses on the future effects of the punishment.

Both types of justification loom large in the death penalty debate. There are retributivists who argue that although other kinds of punishment are appropriate in other cases, death is the only appropriate punishment for certain kinds of wrongdoing. And there are consequentialists who usually argue that killing those who commit certain heinous crimes is the best way to deter those who would have engaged in such criminal activity in the future. That said, there are other consequentialist justifications of the death penalty and these will creep into the discussion.

Anyway, this is just giving you a general picture of the debate and it is illustrated below. Let’s turn now to see what Pojman has to say.

2. The Retributivist Argument
Pojman’s first argument in support of the death penalty is a retributivist one. Somewhat surprisingly, his elaboration of this argument is quite brief. To make up for his brevity, I’m going to spend a little more time outlining the key moves in this argument. I start with a rough-and-ready version:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) The proportionate punishment for murder (and perhaps some other offences) is death.

• (3) Therefore, it is right and proper for those guilty of murder (and perhaps some other offences) to be put to death.

A couple of words about this argument are in order. The first premise is just a statement of the retributivist thesis. I discussed this thesis over the course of two posts last week. The second premise is the key normative claim about the proportionality of the death penalty. Note how death is said to be the proportionate response to “murder (and perhaps some other offences)”. This is significant since, in his article, Pojman makes a partial case for the expansion of the death penalty to cover offences other than murder, including, potentially, white collar crimes. The conclusion (3) then follows straightforwardly enough.

When it comes to the critical evaluation of the retributivist argument, two inter-related questions need to be asked. First, how seriously is the proportionality constraint mentioned in (1) to be taken? And second, is death really the proportionate response to murder (and perhaps some other offences)? These questions are inter-related because how we answer the first question will affect how we answer the second.

So let’s turn first to the seriousness of the proportionality constraint. One way in which to take the proportionality constraint incredibly seriously would be to adopt something akin to the biblical lex talionis . In other words, to punish the perpetrator of every act of wrongdoing by subjecting them to the same act of wrongdoing. Thus, if they steal another’s property, they should have some property stolen from them; if they sexually assault someone, they should themselves be sexually assaulted; and if they kill somebody, they should themselves be killed.

Although this interpretation of the proportionality constraint would support the second premise of the argument, it unravels upon closer inspection. Apart from its sheer impracticality (e.g. what do we do with serial killers — kill them, resuscitate them and then kill them again?), there seem to be a couple of good objections to it. First, it seems to have little intuitive support: I, for one, see little intuitive support for the notion of raping a rapist. Now, I concede intuition is not always a good ground for an argument, but since intuition is one of the primary means of justifying retributivism in the first place, it seems appropriate to raise this objection here. Second, this interpretation of proportionality would seem to warrant the creation of a particularly sadistic and socially destabilising network of punishers. This would undermine the moral foundations of civilisation. Finally, this interpretation could only make the death penalty appropriate for murderers, which is not what Pojman wants. He wants to expand the set of capital offences.

So the lex talionis interpretation of proportionality seems like a non-starter. Nevertheless, we must be careful not to throw the baby out with the bathwater here. There is, after all, something to be said for a proportionality constraint on punishment. I think we could all agree that the shop-lifter does not deserve to be as harshly treated as the serial killer; and that the strength of the punishment ought to be graded in accordance with the gravity of the offence. But saying that says little about the precise form that the punishment should take. And this is key. For the death penalty to be warranted, it must be the case that the proportionality constraint mandates death as the appropriate response to certain forms of wrongdoing. But as we now see, there is no simple way to go from the need for proportionality to the appropriateness of death.

To sum up, in its current form the argument from retributivism is underdeterminative . That is to say: retributivism by itself doesn’t justify the imposition of the death penalty. Something more is needed.


3. Pojman’s Justification of Death
Whether Pojman is aware of this problem is unclear. I suspect he is since he is well-versed in this debate and since the objection outlined above is taken largely from the writings of Hugo Adam Bedau (an old adversary of Pojman’s on this topic). But he doesn’t address it directly in the essay I’m looking at here.

He does, however, say something that could be construed as justifying death over other forms of punishment. Let me quote from the article:

Human beings have dignity as self-conscious rational agents who are able to act morally. One could maintain that it is precisely their moral goodness or innocence that bestows dignity and a right to life on them. Intentionally taking the life of an innocent human being is so evil that the perpetrator forfeits his own right to life. He or she deserves to die (p. 108).

Now there are ambiguities in this passage, but I think it can be interpreted as making the following argument in support of premise (2):

• (4) Human beings only possess a right to life in virtue of their dignity.

• (5) Whosoever loses their dignity, loses the right to life (corollary of 4).

• (6) If a person intentionally kills another, they lose their dignity.

• (7) Therefore, if a person intentionally kills another, they lose their right to life.

• (8) Therefore, if a person intentionally kills another, they deserve to die.

This can then be carried on to support premise (2).

There are several questionable steps in this argument. First off, it isn't clear that dignity is what generates the right to life. Dignity is a fuzzy, much-disputed concept at the best of times. When it is reined in and defined explicitly in terms of self-consciousness and rationality (as Pojman does) things are better, but then this definition raises further problems. In particular, it casts (6) into serious doubt. After all, it doesn’t seem likely that by intentionally killing another person, you thereby lose your capacity for self-consciousness and rationality. Also, there seems to be an unwarranted jump from (7) to (8). Look to the abortion debate as a guide. Defenders of abortion will usually argue that the foetus lacks a right to life, but very few (if any) would then argue that this lack of a right to life implies that the foetus deserves to die. At most, they’d say it is not impermissible to kill it. Perhaps those more well-versed in the logic of rights could set me straight about this: would the loss of the right to life imply a duty to kill?

If we take these problems seriously, and I think we must, Pojman’s use of the retributive argument is unpersuasive, at best. Perhaps he’ll have better luck with the deterrence argument. We’ll see in part two.