The Death Penalty and Retribution

I have brought up some objections to the deterrence argument for the death penalty, and also the expense argument for the death penalty. These, I contended, were undermined by the slowness of the appeals process. A speedier appeals process, however, makes it more likely that innocent people will be executed. So, the death penalty advocate faces a dilemma. A long appeals process makes it less likely that an innocent person will be executed (although the possibility still remains), but it also undermines deterrence and increases expense. A shorter process will increase the risk of executing an innocent person who might otherwise be exonerated, which is already a problem for capital punishment. So my argument had a dilemma structure that I am not sure people picked up on.

However, some have argued that the case for execution isn't primarily a matter of deterrence or even expense, it is a matter of retributive justice. I do accept C. S. Lewis's claim that it is extremely perilous to remove the question of desert from sentencing.

It should be the first consideration, though surely not the only consideration. I am quite sure that Lewis would have also endorsed this comment, which his friend J. R. R. Tolkien put into the mouth of Gandalf:

“Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends.” 

The retributive theory of punishment requires that we deprive the criminal of happiness to a degree commensurate to the wrongness of their acts. In order to fit the crime, the punishment does not need to resemble the crime. We wouldn't use that principle in the case of rape and torture, so why use it for murder? In order for the argument to go through that the death penalty uniquely meets the requirement of giving a criminal his just deserts, you need an argument other than the argument from resemblance, and I don't know what that would be. Executions are quick and physically painless, which was probably not true of the death of the victim of murder. The person executed knows for a long time that this is coming, which again would not be true of the victim. So, once we are deprived of the argument that a punishment that resembles the crime best fits the crime, how do we show that the death penalty is the best way of exacting retribution? 

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Cameron Todd Willingham

Dudley Sharp wrote:

Not suprising, with all that care and time, there is no evidence of an innocent executed since the 1930's.

It looks like about 25 actually innocent people have been sent to death row since 1973, or about 0.3% of the 8100 sent to death row during that time and they were all released on appeal

Really? What about Cameron Todd Willingham?

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Some clarifications on my death penalty post (originally posted at Triablogue)

My argument is actually somewhat different from what you are describing. As the death penalty is now practiced in America, we take extra precautions with it, in virtue of its irreversibility. As a result, two advantages of the death penalty over life imprisonment are compromised. First, while most people think the state pays less by using the death penalty than it does in life imprisonment, the fact is that when litigation costs are factored in, execution is more expensive. Second, the deterrent effect is diminished, since not only does the criminal expect to get away with it (otherwise, he wouldn't commit the crime), but also, should someone actually be tried and convicted and sentence to death, death is hardly immanent, because the murderer can expect a long appeals process which is going to delay the execution for many years, assuming the execution occurs at all. This is probably the reason why crime statistics in states without the death penalty are no worse than in states with it. Having the death penalty just means that you might be sentenced to death, and then after 20 years or so, after your appeals run out, you may get executed, unless, of course, they decide not to execute you, which they might very well do.

So, it looks like the only way to make the death penalty do what we hope it will do is to "fast-track" it, eliminate the appeals, and make execution immanent for those convicted of capital crimes.

Of course, the irreversibility of the death penalty is an argument against its very existence. However, where we do practice the death penalty, we seem to concede an important point to its opponents, namely, that there should be a lot more appeals when we execute than when we imprison, because we can release exonerated prisoners, but not people we have executed. The result is that the two benefits of a death penalty seem to be either eliminated or greatly weakened.

So, if we have a death penalty that does what we want it to do, we have to accept the risk of executing innocent people and fast-track the death penalty. We have to not only risk executing innocent people, but we also have to increase that risk by curtailing the appeals process.

To do that, I think we have to abandon the idea that the execution of an innocent person is a more tragic failure of justice than the failure to punish a guilty person. I don't want to go there. But in order for the death penalty to have the advantages over life imprisonment that pro-death-penalty people think it has, it seems as if we have to go there.

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