Retribution Doesn’t Get Us to the Death Penalty

by Matthew Cavedon

My friend and colleague Ryan Mulvey rests his recent defense of the death penalty on the theory of retribution. The punishment of a criminal, he writes, “must fit his crime; this could even mean the loss of his life.” That’s not the way retribution actually works in the modern Western criminal justice system. We do not try to equate punishment to the crime a person committed. No, retribution serves as a reason to punish in the first place and as a way of prescribing punishment that is relative to other crimes. What punishment a crime actually carries depends on a number of factors related to the common good, but “retribution” is not among them. Those factors rule out the death penalty.

Stop the Death PenaltyFirst, let’s get the notion that punishments fit the crime out of our heads once and for all. No one, not even the strongest supporter of the death penalty, thinks that punishments should fit crimes in the sense of mimicking them. If they did, the death penalty wouldn’t even come close for many murderers. Maybe the death penalty coupled with time spent in a thumbscrew, or watching one’s friends be tortured to death. But no one seriously thinks that the punishment of sadistic killers should really fit their crimes.

It isn’t just our rejection of torture-killing: I dare anyone who thinks that punishments must fit crimes to justify prison sodomy as a sentence for rapists. There is not a single crime for which modern people think the punishment should be the same as the offense. We got rid of that approach over a millennium ago. We did so for good reasons, too: any punishment that really replicated the brutality, terror, and capriciousness of crime could only be a crime against human dignity—committed against convicts, committed by the agents of the state.

Retribution, then, does not tell us what a punishment should be. Why is it cited so often in discussions about criminal justice? Because it does tell us other useful things, namely, that crime ought to be punished and that they ought to be punished relative to their severity. The theory of retribution urges us to punish even people who we think likely to never offend again—perhaps because their crime was deeply personal, like killing the lover of their spouse, or because they stole from someone’s house the day before winning the lotto. And it tells us that punishments must fit the crime committed, rather than some other crime. For example, retribution would make us think something terribly wrong about a place where unruly students are egged into cage fights while people credibly accused of rape miss work for four days without ever being put in front of a jury.

But to find out what punishment should be prescribed for a crime, we have to look elsewhere. We try to strike a balance between many of the things that people expect from a punishment—its proportionality compared to other crimes, ability to prevent people from enjoying ill-gotten gains, contribution toward securing the community by discouraging future crimes, expression of our condemnation of the criminal act, and respect for the dignity of convicts and the humanity of punishers. Punishment, like any other social task, must serve the whole community, and honor the rights of each of its members.

The process of determining punishments is not finished by listing the factors to be balanced. But one punishment completely throws off the scales—death. Death cannot possibly serve the whole community and honor the rights of everyone. The closest it can come is serving the whole community minus two, honoring the rights of everyone save for the punisher and the convict. As Russian philosopher Vladimir Soloviev noted over a century ago, “The assertion that the common good in certain cases requires the ultimate abolition of a given person” is a self-contradiction. “The common good, according to its very idea, should be the good of this man too,” and his punisher.

The common good—not “retribution,” as Mr. Mulvey would have it—determines how punishments are doled out. And it cannot be squared with the death penalty that he defends.

One Comment

  1. Matt,

    Thanks for your response to my recent article. I do have a few issues.

    To begin with, you entirely mischaracterize my argument and the concept of lex talionis. “Eye for an eye” is a limiting principle and not a directive to punish according to “the crime a person [has] committed,” at least in the sense that you imply. The “fit” of which I speak is one of proportionality, not one of “mimicking.” As you write, “not even the strongest supporter of the death penalty” would speak of “fit” in this latter manner. Neither do I. A murder can be punished with the death penalty; a thief cannot. I explicitly suggest that murder simpliciter should not always result in execution.

    I agree that punishment should be determined according to the positive law and with the common good in mind. Retribution is a theory of justice that serves (1) to legitimate punishment at the hands of the State, and (2) to provide constraints on how the State carries out of that function. There is nothing at odds with that understanding of retribution and my own argument. While I do think (in disagreement with you) that retribution alone could serve as a substantive theory of how we should punish (I don’t), my argument does not engage that topic per se. I only provided a philosophical defense of the death penalty, not a positive account of when it ought to be used. As I wrote:

    “The death penalty ought to be used sparingly, prudently, and only in instances of the most egregious criminal offenses. Moreover, the criteria for its use ought to be exceedingly stringent and intensely scrutinized. But when those criteria have been met, and the State’s justice system has been shown to have acted legitimately and fairly, and we are as certain as is humanly possible that guilt has been demonstrated, then I fail to see any convincing moral or philosophical impediment to carrying out an execution. More importantly, I am convinced that there is no contradiction with this stance and the “pro-life” position on other issues, abortion and euthanasia among them.”

    It seems that your real quarrel is with my claim that the execution of an individual can, in theory, serves the common good of society. That is a distinct argument from the one which you proffer here.

    – Ryan Mulvey

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