Abstract
This chapter offers a proceduralist argument against capital punishment. More specifically, it contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. At stake is a principle of political morality: legal institutions must strive to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the morally required compensation, execution is impermissible. Along with defending his key premises, Yost explains the complicated role that sentencing uncertainty plays in the argument. He concludes by noting some of the flaws in substantive consequentialist and retributivist justifications of capital punishment.
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Notes
- 1.
- 2.
An example of such an argument is the hard determinist claim that people lack free will and thus cannot deserve execution, or any other punishment.
- 3.
This is the statutory cap on compensation for wrongful imprisonment in Wisconsin.
- 4.
Davis adopts the substantial conception of revocability but denies the irrevocability of execution.
- 5.
The preference theory of well-being that secures claims about the possibility of posthumous compensation is fairly controversial, but I will set that issue aside.
- 6.
We can arrive at this duty from a different route. For mainstream liberal political thought, one of the central aims of legitimate legal and political institutions is to ensure that citizens have the maximum amount of control compatible with other citizens’ control over their lives. This aim is shared by a variety of normative political philosophies, including Nozickian libertarianism, which interprets control as sovereignty over one’s personal moral sphere; Pettitian non-domination theory, which construes control as thoroughgoing freedom from arbitrary interference; as well as a Rawlsian egalitarianism, which conceives of control as a positive capacity to accomplish one’s ends regardless of one’s draw in the natural lottery. On all these views, states must protect and enhance individuals’ ability to control their lives. Accordingly, unjust state interference with that ability must be immediately discontinued and remedied.
- 7.
I am assuming that execution might be proportionate to some murders. For more on this point, see §3.2.
- 8.
Certainty is not a legal concept, although it does have a kinship with the beyond-a-reasonable-doubt standard of proof, the standard of proof that imposes the greatest epistemic burden on the prosecution. Standards of proof are supposed to provide practical guidelines that inform judges and jurors when their confidence in a legal proposition is sufficiently likely to meet whatever epistemic standard (from mere belief to justification to full-blown knowledge) renders the proposition in question valid, such that acting on the basis of this confidence is permissible and blameless (see Walen 2015; see also Laudan 2006). U.S. courts have not specified the degree of belief needed to place a legal proposition beyond reasonable doubt, though scholars usually venture 0.9 or 0.95.
- 9.
I will consider one objection to this claim below.
- 10.
Confessions are surprisingly easy to coerce; detectives have well-known ways of persuading the accused that they are guilty, even when they are innocent (Davis and Leo 2012). Basically, investigators present the accused with fabricated evidence of their guilt, induce a dissonance between their belief in their innocence and their belief in the investigators’ truthfulness, then suggest to them that they suffered momentary unconsciousness or are repressing the memory.
- 11.
In 2011, Mark Ciavarella and Michael Conahan were convicted of taking kickbacks from a private prison developer in repayment for sending minors to the developer’s for-profit juvenile detention center.
- 12.
Annie Dookhan, a chemist for a Massachusetts state drug lab, was sentenced to three years in prison for tampering with more than 60,000 drug tests, skewing them in favor of the prosecution. Another Massachusetts lab employee performed thousands of tests while under the influence of cocaine, ecstasy, and LSD (Lithwick 2015).
- 13.
In a criminal trial, jurors are supposed to convict only if they believe beyond a reasonable doubt that the defendant displays the mens rea and actus reus belonging to the offense. Mock jury studies suggest that this standard is rarely met. Jurors often interpret the beyond a reasonable doubt standard as permitting conviction when there is, objectively speaking, only a preponderance of the evidence for the defendant’s guilt (Walen 2015, 375). That is, they misunderstand, and thus misapply, the basic epistemic criteria governing their deliberation. They thus render verdicts that fail to meet those criteria.
- 14.
Steiker (2015) discusses these points more carefully than I can do here. One might wonder if I am letting Nazis off the hook by raising questions about their mental fitness. This is a difficult question, but my sense is that people do not care if Nazis and other genocidaires are of sound mind, and are happy to execute them regardless. In other words, I suspect there is a threshold of evil above which the retributivist insistence on culpability is no longer thought to apply. But if this is so, whatever justification vindicates the execution of horrible but inculpable evildoers will not support the death penalty as practiced today.
- 15.
I borrow this moniker from Bedau (2002), although my formulation of the principle differs slightly from his.
- 16.
For a detailed explanation of how this works, see Yost (2021).
- 17.
Calculating the consequences of EA is easier in capital cases than in noncapital ones. For some discussion of the impact of EA on noncapital sentencing, see Yost (2021).
- 18.
Specific deterrence aims at deterring an offender from committing a more serious offense or from reoffending. General deterrence aims at deterring the general public from committing crime.
- 19.
For a lucid overview of these problems, see Boonin (2008). Two-level theories justify the institution of punishment in consequentialist terms and sentencing in retributivist terms (see, e.g., Rawls 1955; Hart 1968). These proposals fare somewhat better, insofar as they are specifically aimed at countering the innocence and disproportionality objections. Ultimately, though, two-level theories turn out to exhibit serious shortcomings of their own, as clearly explicated in Primoratz (1989).
- 20.
Richard Frase develops the principle of parsimony into what he calls the “alternative means” principle of proportionality (2020, 105–6). Both are straightforward applications of a utilitarian efficiency principle.
- 21.
For a comprehensive overview of retributivist justifications, see Kramer (2011).
- 22.
Page numbers for Edward Feser’s “The Justice of Capital Punishment” refer to page numbers in this volume.
- 23.
Some believe that life in prison is just as severe as execution, if not more so, but I will set this debate aside. John Stuart Mill’s 1868 speech contends that life in prison is worse than death (1988), but most proponents of the death penalty claim the opposite (van den Haag 1986, 1662; Pojman and Reiman 1998, 30–31; Oderberg 2000, 161–62; Feser 2011). A few retentionists, like Sorrel, claim the two types of harm are equivalent (1993, 209).
- 24.
- 25.
In medieval England, those convicted of high treason were dragged to a gallows, hanged almost to the point of death, revived, then emasculated, eviscerated, beheaded, and posthumously quartered. A slightly relaxed version of this practice continued into the early 1800s.
- 26.
The easiest way to do this is to endorse a literal “eye for an eye” version of the lex talionis, which prescribes that the punishment be exactly the same as the offense. But this view has many fatal flaws. A salient one is that some literally fitting penal techniques (e.g., torture or rape) are morally impermissible, either owing to their intrinsic wrongfulness or the wrongfulness of their extrinsic effects, such as the brutalization inflicted on the agent of punishment (Waldron 1992, 38). Few retributivists subscribe to this atavistic view, much less defend it, and Feser is not one of them. If he did endorse a strict interpretation of the talion, he would not need the argument I have been analyzing, but he would be in even hotter water.
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Yost, B.S. (2023). The Impermissibility of Execution. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_34
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