COMMENTARY: The death penalty as retribution?

In reinstating Georgia’s death penalty in 1976, the Supreme Court of the United States appealed to two legitimate purposes of capital punishment: deterrence and retribution. My colleague Hsin-Wen Lee recently addressed the issue of deterrence. (“Does the punishment only deter ‘rational’ people?,” Jan. 24)

Here I shall focus on retribution. Retribution is payback, and the core idea is that criminals should receive their just deserts. I shall grant that it is impermissible to give a person a punishment that they do not deserve, such as execution as punishment for jaywalking. But is it always permissible to give a person a punishment they do deserve?

I don’t think so. If the state were permitted to inflict every deserved punishment, then there are no principled limits to permissible punishment. Those guilty of heinous torture deserve, and therefore can be, heinously tortured by the agents of the state. Those guilty of rape can be raped by the agents of the state. And so on. Such a view puts the legitimate behavior of the state at the mercy of its criminals: whatever horrible crime can be dreamt up and committed, the state must include its state-administered equivalent on the list of permissible punishments.

The argument just given shows that a blanket appeal to “an eye for an eye” does not establish the permissibility of the death penalty. It might establish that a murderer does indeed deserve the death penalty. But it does not establish that we may inflict it. The crucial question for a retributivist, then, is whether or not capital punishment belongs on the list of permissible punishments in the first place.

To make progress on this question we should ask, what is so terrible about state-inflicted torture and rape? Why do we recoil in horror at the thought of such things? They seem too brutal, too callous. It may be that we think the state should not “dirty its hands” by engaging in such behaviors. It may be that we think the state sets a terrible example for its citizens by engaging in such behaviors. Such things seem obviously uncivilized, and only barbarian societies would inflict them upon its members, even those who are guilty.

It is my view that capital punishment is similarly uncivilized. I try to imagine witnessing state administered rape or torture, and it makes me very uncomfortable. My discomfort is not only with the suffering of the criminal, but also with myself, and with any broader culture which permits or even exalts such things. I feel complicit in brutality, and feel brutalized in turn. When I try to imagine witnessing a state execution, it makes me just as uncomfortable, and for the same reasons. I encourage you to imagine this for yourself.

My argument depends upon understanding criminals to be fellow citizens and fellow human beings. So I reject what I call the cockroach argument. According to the cockroach argument, serious criminals such as murderers are the equivalent of bugs, fit only to be crushed underfoot. This seems to me not a retributivist position at all. Crushing a human cockroach would not really be punishment, but rather the extermination of vermin. This reveals the cockroach argument to be morally repugnant, as it fails to treat the guilty person as the human being they are.

EDITOR’S NOTE: Richard Hanley is associate professor of philosophy at the University of Delaware.

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