On Irrevocable Punishments
By Tibor Machan - March 17, 2011

Capital punishment or the death penalty is usually administered for very grave crimes such as high treason, the murder of police officers, serial murders, etc. I want to provide a line of argument opposed to it. I believe the conclusion of this argument deserves close scrutiny and then adoption.

My idea is somewhat unusual in that I do not argue against the death penalty as a cruel and unusual type of punishment, nor do I claim that the death penalty is barbaric or demeans members of societies in which it is practiced. There certainly are people who do not deserve to remain alive among the rest of us, whose evil doings warrant the most terrible, most severe rejection of them by us. In short, some people deserve to die for what they have done, there is not much doubt about this.

What is wrong with the death penalty is that it is a form of punishment we cannot undo if we are mistaken. So what counts firmly against it is that administering it could very easily amount to imprudence, recklessness. And as a general policy the death penalty marks the society in which it is practiced as systematically so.

There is little doubt that defendants are often found guilty even though they may in fact not be guilty. That is because human beings – even twelve of them working diligently together, let alone twelve who may be angry, prejudiced, emotionally out of control, etc., as well as judges of appeals courts and the federal judiciary – can and often do make mistakes. Usually if mistakes have been made in the criminal justice process and are later discovered, reparations can be made to those who have been wronged. But if a defendant's punishment included execution, there is no way to remedy matters. It is not possible for us to restore someone to life. It is not possible to apologize and make amends. We are left with the burden of guilt for having given ourselves no option in the wake of a very real possibility, namely, having mistakenly convicted and executed someone.

Thus, being against the death penalty on the basis I have outlined does not mean that convicted criminals are being coddled or safeguarded against the consequences of their actions. Nor does this line of reasoning assume that defendants could not deserve being executed – certainly it is arguable that many who have received the death penalty, as well as some who are about to be sentenced, have wronged others so severely, so viciously, that they have no reason left to live.

Not executing even such persons is only to ensure that we, law-abiding citizens, do not find ourselves acting irresponsibly in the face of our fallibility. We need to make sure that we can recover from mistakes. It is only rational for us to anticipate that now and then this will be necessary and avoid policies that make it impossible.

Indeed, in any given case, very likely the defendants have earned the most severe punishment for their crime, although I am not privy enough to most of them to make such a determination myself. Still, the process may have been flawless.

Yet, it is not at all silly to suppose that – given how close knit many communities are, how a legal community is itself a kind of professional fraternity and sorority, and how many connected to a case are part of a de facto cabal which makes for the possibility of a bad designation of venue – one cannot guarantee against mistakes.

And it is vital that we guard against the worst consequence of such a possibility. Not because of the defendant, but because we ought to want to do the right thing, even if only belatedly.

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