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Not justice 

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  • ARKANSAS'S DEATH CHAMBER

The strongest, most enduring calls for the death penalty come from those who feel deeply the moral righteousness of "eye-for-an-eye" justice, or retribution. From the depths of pain and the heights of moral offense comes the cry, "The suffering you cause is the suffering you shall receive!" From the true moral insight that punishment should fit the crime, cool logic concludes, "Killers should be killed." Yet I say: retribution yes; death penalty no.

We are wrong to move easily from the rightness of the call for proportionality between crime and punishment to demands for the death penalty. Consider: Despite the would-be fitness of crime to punishment, we do not abide the torture of torturers nor rape the rapists. Perhaps this is because we know it is wrong to turn someone into a torturer or a rapist in order that torturers and rapists might be punished to their full measure. But if so, why is asking someone to become a killer so that killers may be killed any different?

That question has many angles worth pondering. Here is my angle: I think we as a society reject certain literal forms of eye-for-eye punishments because punishing people in those ways would entirely fail to achieve what justifies returning suffering for suffering in the first place.

What, after all, does make it ethically right to cause wrongdoers to suffer in kind? How does suffering in exchange for suffering make a right? Sure, when our emotions are high it feels right, but lots of times our emotions just get it wrong. What, for example, makes an emotional plea for retribution morally justifiable, while the persistence in revenge is not? The answer to these questions lies in the notion of moral desert and its relationship to justice.

Justice seeks to give people what they deserve. How can people come to deserve suffering? What do wrongdoers deserve? They deserve to be held accountable. When we stand up to those who deliberately and wittingly hurt us and say, "No, this shall not be done, and I demand better," we give them the respect we owe them as persons. By demanding they suffer our reprimand, we acknowledge that they are beings with the moral capacity to choose and control their actions in accordance with standards of right and wrong, even though they got it wrong this time.

For serious wrongs that tear at the fabric of society's well-being and our life together, the state must do the holding accountable on behalf of all of us, and it will not do to slap the hand of murders, nor to lock up petty thieves for life. The latter holds the petty thief accountable for a degree of wrongdoing for which she is not responsible; the former leaves suffering unaccounted for and the murderer inadequately held responsible for his grave degree of wrongdoing.

That is what I think retribution gets right: Namely, that people are to be punished only if they deserve it, and that to be deserved the punishment must have a proportionality to the wrongdoing that adequately holds the person accountable for the degree of wrong done.

Why then am I against the death penalty? Because as a retributivist I believe that only punishments that hold people accountable for their wrongdoing can be deserved, and the death penalty necessarily fails to meet this morally necessary criterion. We ought not to kill killers for the same reason we ought not to torture torturers, whatever our commitment to eye-for-an-eye justice. Torture does not and cannot hold a person accountable. Torture is the infliction of suffering to the point that the person is beyond all reason, reduced to a quivering mass of animal pain that will do anything to stop the torture. This is not an appeal to the person's moral agency; quite the opposite, it aims to destroy the very powers for rational reflection that make moral response and accountability possible.

Inflicting suffering that destroys the person's capacity to make a moral response cannot constitute an act of holding someone accountable. That act — the one we owe one another and deserve from one another as moral agents; the one by which we respect persons as persons — that kind of act must appeal to the wrongdoer as a moral agent, as someone who can respond to the suffering as only moral agents can, namely by re-evaluating their behavior in light of a moral reprimand.

Death is not a penalty to which response as a moral agent is possible. Sure, murderers can reflect on their wrongdoing while they are incarcerated on Death Row. However, under the death penalty, incarceration is but a practical necessity for assuring fair opportunity for appeal; it is not the punishment. Their punishment, death — the cessation of conscious life insofar as the state can determine — makes moral response, so far as the state knows, impossible. It therefore violates the only purpose that makes a return of suffering for suffering justified.

It is morally incumbent upon the state to find and exact a form of punishment for capital murder that expresses to a sufficient degree the terrible, horrendous wrong of taking a life, yet leaves the murderer alive and capable of moral response. State Rep. Vivian Flowers seeks to bring forth a bill that would make life imprisonment without parole rather than death the required punishment for capital murder. I support this bill. There is meaningful proportionality in the one who takes a life forfeiting forever life lived on his own terms and having to offer to the end of days his response to society's loud and clear "no."

Perhaps the convict's response as a moral agent will be to insist upon and seek to prove her innocence. That opportunity also makes life imprisonment, compared to death, a more fitting retributivist punishment. Above all, retributive justice says that punishment is justified only if it is deserved. By that standard the state is morally required to use forms of punishment that leave open the possibility of release from undeserved, wrongful punishment. Any system that employs the death penalty fails to deliver retributive justice.

Peg Falls-Corbitt is the Virginia A. McCormick Pittman Distinguished Professor of Philosophy at Hendrix College.


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