Rosalia
May 28th, 2009, 4:38 pm
Those who are in favour of capital punishment and those who would abolish it are likely to agree on the following point: that any system of justice, however well established and with however many checks and balances will always have instances of wrongful conviction. Any system of laws devised by human hand and practised by human beings will include the inevitability of human error. A legal system which endorses and implements the penalty of death will therefore have as a consequence that on occasion the wrongly convicted will be put to death.
If we agree that this is a fact there then arises the following question: in the case of capital punishment does the fact of wrongful conviction in and of itself provide a moral invalidation of the death penalty? If it is the case that the innocent are being put to death does it follow that in certain circumstances capital punishment is (at least morally) equivalent to murder?
The abolitionist will argue that it is. From the fact that innocent people will die she urges the conclusion that therefore the death penalty should have no place in a system of law that is predicated upon an ultimate regard for the sanctity of life.
I wish to argue that this conclusion is misconceived, and for two reasons.
(1) It is impossible to draw the conclusion that the death penalty is threatened by miscarriages of justice without a supplementary premise: that a system of law should attempt at all times to minimize the loss of innocent life (and who can argue with that?). But what if it could be demonstrated that a system of laws which included the death penalty resulted in fewer losses of innocent life, miscarriages notwithstanding, than a system of laws which didn't? In other words, this objection to capital punishment has force only if it assumes a certain consequentialist thesis: that a legal system carries an ultimate responsibility to minimize the loss of innocent life. Which brings me to:
(2) The abolitionist who argues his case based on the reality of wrongful executions does not really understand that capital punishment is just that: punishment. Pointing out that allowing a state to put to death an innocent (wrongly convicted) person and that as a consequence its right to do so should be abolished makes the mistake that all consequentialist theories of punishment make: that whether or not a convicted person deserves to die is determined by the past actions of that person, rather than the future and hypothetical consequences of his execution.
To put it another way: the abolotionist who argues from miscarriage of justice straight to the need to do away with the death penalty does not really have a theory of punishment at all. They get the timeline wrong: punishment is by definition backward looking, not forward looking.
I hope I've disposed of that one. Now NCIS is on. Goodnight.
If we agree that this is a fact there then arises the following question: in the case of capital punishment does the fact of wrongful conviction in and of itself provide a moral invalidation of the death penalty? If it is the case that the innocent are being put to death does it follow that in certain circumstances capital punishment is (at least morally) equivalent to murder?
The abolitionist will argue that it is. From the fact that innocent people will die she urges the conclusion that therefore the death penalty should have no place in a system of law that is predicated upon an ultimate regard for the sanctity of life.
I wish to argue that this conclusion is misconceived, and for two reasons.
(1) It is impossible to draw the conclusion that the death penalty is threatened by miscarriages of justice without a supplementary premise: that a system of law should attempt at all times to minimize the loss of innocent life (and who can argue with that?). But what if it could be demonstrated that a system of laws which included the death penalty resulted in fewer losses of innocent life, miscarriages notwithstanding, than a system of laws which didn't? In other words, this objection to capital punishment has force only if it assumes a certain consequentialist thesis: that a legal system carries an ultimate responsibility to minimize the loss of innocent life. Which brings me to:
(2) The abolitionist who argues his case based on the reality of wrongful executions does not really understand that capital punishment is just that: punishment. Pointing out that allowing a state to put to death an innocent (wrongly convicted) person and that as a consequence its right to do so should be abolished makes the mistake that all consequentialist theories of punishment make: that whether or not a convicted person deserves to die is determined by the past actions of that person, rather than the future and hypothetical consequences of his execution.
To put it another way: the abolotionist who argues from miscarriage of justice straight to the need to do away with the death penalty does not really have a theory of punishment at all. They get the timeline wrong: punishment is by definition backward looking, not forward looking.
I hope I've disposed of that one. Now NCIS is on. Goodnight.