Mirror of Justice

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Tuesday, August 31, 2010

Retribution and Capital Punishment

Thom Brooks has posted a short paper laying out a retributivist argument for rejecting the retributivist justification of the death penalty.  His argument is epistemological; it does not rely on the notion that capital punishment is not proportionate to murder or that it constitutes cruel or unusual punishment.  Here's an excerpt: 

A determination of punishable desert may be substantially a determination concerning the state of mind of another. We cannot read the minds of others, but we can bear witness to their actions against an explanatory narrative that may give us some insight into why another did what they did. The claim here is not that we can never grasp guilt, but that our certainty is always in doubt. This does not mean that retributivism cannot justify punishment because it can offer us ‘no perfectly just judgements’. However, it would mean that capital punishment is especially problematic. When we impose capital punishment on a convicted murderer, there cannot be room for error as the murderer can never be brought back to life afterwards. If there remains a substantial risk of error demonstrated by advances in scientific testing in cases where a person has been sentenced in a fair trial beyond reasonable doubt, then we have good reason on retributivist grounds to reject capital punishment in favour of an alternative sanction.

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If such great probability of substantial errors exist in criminal law, how can any state action against criminals be justified. There is no way to give back years of imprisonment either. The argument proves too much.

The professor also never explains why we can be more certain of exonerations than convictions. If there are technological methods that make certain exonerations perfectly clear, then presumably similar methods could make guilt as certain. If all judgments about guilt are really flawed, then the judgments of exoneration are as likely to be flawed as judgments about guilt.

Posted by: Pensans | Sep 1, 2010 7:10:01 AM

If such great probability of substantial errors exist in criminal law, how can any state action against criminals be justified. There is no way to give back years of imprisonment either. The argument proves too much.

The professor also never explains why we can be more certain of exonerations than convictions. If there are technological methods that make certain exonerations perfectly clear, then presumably similar methods could make guilt as certain. If all judgments about guilt are really flawed, then the judgments of exoneration are as likely to be flawed as judgments about guilt.

Posted by: Pensans | Sep 1, 2010 7:10:01 AM

Two considerations underly any sort of criminal sanction. The first of these is the primary one: deterrence. We send people to prison or flog them or fine them or execute them to make an example of them. This is the justification presented in the famous (notorious?) Roman Catechism. The other reason is to validate the law. If the law did not sanction bank robbers the message would go out very clearly that it's okay to rob banks. This rationale is usually simply taken for granted, although it is explicit in Aquinas.

It goes without saying that if the determinations of guilt and innocence are not credible, neither of these reasons retains any validity. The courts and juries are just throwing darts, you might as well commit the crime because that would not increase your chances of doing the time. On the other side, if the legal process is just a game of chance, how can it be validated?

The question remains of how well our courts and juries actually perform. The evidence implies that they do very well, especially in the more serious cases. Do they have to be perfect to justify the sanctions they levy? No. They only have to do well enough to achieve deterrence and validation. Are mistakes made? Undoubtedly, although there is no case that I know of in American law of a man being exhonerated after he had been executed.

We live in a community -- a propositon that hardly needs to be repeated in these hallowed chambers. Communities function. If they don't function well, they lose their legitimacy. If they do function well, they survive or prosper. That's how we know whether our criminal law is working. I offer this justification because the initial thesis was propounded on a "realist" premise: we never are sure about guilt. Well, realistically we are never sure about anything. But we do know that our legal process works pretty well, and in particular that our sanctions deter crime. What more do we want?

Well, we want greater certainty, I guess. So get better police. No one objects to that.

Well, we want more confident public validation of our decisions. Show me the groundswell of concern and doubt. Except for the author of the original post, the ground shows no signs of swelling, or of even rippling. The evidence implies that those convicted of crime really are guilty, including capital crimes. We demand that the criminal law fulfill the tasks the public gives it, and from my perspective that's what we get. It ain't broke. It can be improved.

The ethical case for capital punishment -- the question of how the state can take a life -- does not simply stand alone apart from other public matters. The authority to take life in cases of heinous crimes is part of the right to take life in war in order to preserve the society and the rights of the citizens. If the state has the right to send innocent young men off to fight and die in Afghanistan or Iwo Jima, it certainly has the authority to take the lives of the guilty. The only way to sidestep that inference is to deny the concepts of guilt and innocence, which is what the original thesis we are debating ia really about. The author grants that there is "guilt as an abstract concept," but he denies that there is "guilt as an actual finding." It's not that we do or don't know guilt when we see it. It's that we never see it.

The scriptures, and not in any sense them exclusively, are given us to guide our judgements of right and wrong and judgements of guilt and innocence. They weren't given to the evangelists and to Moses just to show to the angels. They were written for us. We have to employ them, even when we would rather not.

Posted by: Joel Clarke Gibbons | Sep 1, 2010 5:51:36 PM