Can the Death Penalty Be Reconciled with Justice?

Most arguments for the death penalty deny the justice of retribution.  Retribution is the principle that any punishment should be equal to the violation committed.  Other principles of punishment have been used in support of the death penalty, but have failed.  Retribution remains the last refuge for the barbarism of capital punishment.

The other principles used to support the death penalty have fallen to evidence or to contradiction.  Deterring the criminal from future crime by killing him is effective, but would apply too broadly.  After all, non-violent felons would be deterred by their own deaths as well.  A principle of general deterrence relied upon the idea that the threat of capital punishment would deter crime.  But psychology has long since proven that punishment in general does not alter long-term behavior.

The principle of retribution remains because it is impervious to any science yet devised.  We take the principle for granted because it seems so obvious.  Retribution is bound up with our cognitively fundamental conceptions of reciprocity.  Almost all human beings feel the need to do right for those who have done right by them.  So we also seek to do harm to those who harm us.  We all feel the boiling of our blood upon learning of violations to human dignity.  And sometimes those violations are so grotesque that the criminals seem not to have enough blood to cancel their guilt.  Such is the case with state torturers, war criminals, and rent-seekers who have laid waste to nations of human beings.

The principle of retribution is so basic that we really shouldn’t resist it.  Retribution is morally permissible.  But while the principle of retribution is sound, its practice will always be limited.  The last decade has seen a growing realization that the investigation and prosecution of capital cases is fatally flawed.  The Innocence Project has used DNA to exonerate 302 people on death row since 1989.  The criminal justice system in the United States is broken beyond belief.

But no improvement to police investigation, prosecutorial ethics, or trial procedure is ever going to deliver the degree of certainty needed to condemn a human being to death.  Retribution must be delivered against only those persons that committed the crime in question.  Applying the death penalty to someone innocent of the crime in question would be simply to commit murder.  Even the best methods of investigation and trial deliberations will yield only the great likelihood that the accused is guilty of the crime deserving death.  To execute the guilty on the basis of a high degree of probability is to leave society open to a collective murder of an innocent person.  For the death penalty to apply justly, there can be no possibility of the punishment becoming a murder.  But such a guarantee is not available to us.

We cannot be guaranteed that only those guilty of death will be put to death, even under the best circumstances of identifying the criminal.  Thus, we cannot reconcile any account of justice with the death penalty.

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