Tuesday, 5 June 2012

Why I'm Against the Death Penalty

     The other day, I mentioned parenthetically that I would get to me reasons for opposing capital punishment in another post. Ere I forget, I'm writing that another post now. I have two main reasons for my position. One is moral/philosophical, and I might get to that in another post. The other is legal, and that's what I'm going to talk about in this article.

     There are two kinds of rights we have in our legal system, substantive and procedural. Substantive rights include what we usually think of as basic human rights (rights not to be tortured, to worship or believe what one will, to vote in elections, and so forth) but also can include special rights such as those gained under a contract or by statute; under a contract, if you do your part, you have a right to what the other party promised. Substantive rights can be disputed at times, and won or lost under various circumstances.
     This is where procedural rights come into play. Procedural rights are rights to a fair process (hence the name) by which substantive rights can be determined. So, for example, you have a procedural right to a fair trial to decide whether or not you lose your substantive right not to be imprisoned.
     Procedural rights are interesting because although we usually speak of them as belonging to the accused (in criminal matters) or to the litigants themselves in civil matters, they are actually more diffusely owned by society as a whole. That is, we all have an interest in procedural fairness, and we all lose if our procedures become unfair (even if some of us happen to benefit from the unfairness). It's just that the parties to the dispute are the ones most immediately concerned with the process, and thus most likely to zealously assert those procedural rights. Besides, if one party should choose to waive those rights in a given case, no one else is in a position to complain about unfairness.
     Now, while substantive rights can be won or lost, procedural rights ought to be absolute, in part because they don't just belong to the accused. There is no crime so heinous that we would want to say you lose your right to a fair trial; no matter what you're accused of, you have a right to insist that the state prove its case against you before it can mete out punishment. And society also has a right to insist this as well, because (1) none of the rest of us want the state to be able to punish us without proof, and (2) society has an interest in making sure that we've got the right guy; it wouldn't do to convict you while the real culprit goes free.
     My legal problem with capital punishment, then, is not that it takes away substantive rights, but that it extinguishes all rights, substantive and procedural, absolutely and irrevocably. Once someone is executed, there is no possibility that new evidence can exonerate them, or that the law on sentencing could be changed, or that the Crown might grant a pardon. While I have considerable trust in the legal system in principle, part of that trust derives from the fact that it includes so many error-correction mechanisms, such as appeals, Acts of Parliament, and Crown prerogatives. Capital punishment deprives society of the opportunity to correct its errors.


  1. Tom,

    It can't be that you oppose the death penalty SIMPLY because it is noncorrectable, because every punishment is noncorrectable once it has been inflicted. For example the state can release criminals from prison, but it cannot undo a past incarceration.

    So what is the alternative interpretation of your argument? Well, maybe you're saying that even though incarceration and the death penalty are both noncorrectable, at least incarceration has a better chance of being corrected or partially-corrected. So a wrongly-convicted criminal may be incarcerated for all his life, but nevertheless he has some small opportunity to be released down the line.

    But so interpreted, your argument implicitly assumes either that declining to execute the worst criminals is not ALSO a legal error, or else that it is not such a grievous error as to warrant risking the error of punishing the wrong criminal. But this strikes me as false. It seems like the death penalty is exactly the sort of retribution which human justice requires, and so it would be an error for our justice system to fail to mete out that just punishment in favor of one which is milder than the criminal deserves. So what you are proposing is to avoid risking one sort of error by way of actually committing (not merely risking) another sort of error---and one which is itself very serious. Obviously, this seems a bad policy.

    Of course, that is a pretty big assumption on my part---is it really the case that the worst criminals deserve the death penalty? That may not be obviously true, even if it is true. But my point is that everything seems to ride on the issue of whether the death penalty really is merited by justice. Maybe that's what you plan to discuss in your "moral/philosophical" argument. But I cannot accept the "legal" argument you have presented here.


  2. Hi, Ben. Thanks for your thoughtful and rigorous comment.

    To some extent, I think my poor writing is to blame; I ought not to have ended with such emphasis on the irrevocability aspect, as that gives the impression that the ability to correct legal errors is the main thrust of my argument. It isn't, and of course you're right that virtually every decision made by the legal system is irrevocable, in that the time that passes while it's in effect can never be regained.

    At law, however, we do have a convenient conceit in tort that wrongs can be remedied with monetary damages. It's a fiction of course, but a necessary one. I'm not proposing that monetary damages can repair someone who's been wrongfully imprisoned any more than they can compensate for the loss of a limb, but the point is that the wronged party still has procedural rights and can, in principle, exercise them to be exonerated. The death penalty uniquely extinguishes those procedural rights. And my position is that procedural rights must be absolute; exercising them might not get you what you really want, but they cannot be taken away.

    Now, notice I never said anything at all about whether or not someone deserves the death penalty. That's because I don't think that what a prisoner deserves should be an important consideration, for two reasons. First, I don't think convicted criminals are all that worthy of our moral consideration as individuals in their own right that we should lose sleep over them getting what they deserve, while we don't seem to devote a lot of society's resources to giving non-criminals what they deserve; why do criminals' deserts warrant so much more attention? Second, the role of criminal justice is to prevent, deter and ultimately eliminate or at least reduce harm to society by crime, and so I see three distinct (and largely incompatible) objectives for sentencing: deterrence, rehabilitation, quarantine. Punishment is only relevant to the first of these, and again, deterrence has little to do with what anyone deserves.