ARGUING AGAINST THE DEATH PENALTY: Steve Garvey, in a paper recently posted on ssrn.com, argues in favor of the proposition that it was permissible that Gov. George Ryan commute the sentences of all those on death row in the state of Illinois – not that he had to do it, but only that it was with his rights to do so, and not just his legal rights, but his moral rights. It was morally legitimate that he show mercy, though not morally mandatory. The piece is clear, careful. Sometimes it seems that thoughtful philosophy papers are hard to come by in law reviews, but Garvey’s pieces are always of very high quality.

Before commenting on Garvey’s substantive argument, I want to make a point about his strategy. He argues against the death penalty not directly, but by saying that it is incompatible with his favored theory of punishment, in his case punishment as atonement. The idea is that the death penalty doesn’t fit as an appropriate punishment given the aims of punishment. Sometimes retributivists argue this way as well – that the goals of retributive punishment don’t fit with death as a punishment. This is a harder sell than with punishment as atonement, but I’ve seen it offered as a possibility.

I think this strategy is wrong. My sense is that we should argue against the death penalty directly, by saying that it is inhumane, uncivilized, and a form of torture. This means appealing to principles outside principles of punishment, strictly speaking. And I think this is fine. Indeed, thinking about the example of torture, we don’t condemn it by saying it doesn’t fulfill the goals of atonement, retribution, deterrence, etc. That is, we don’t argue against torture by saying it doesn’t fit with our favored theory of punishment. We say torture is wrong because it doesn’t respect the dignity of human beings, etc. It seems to me that we should say the same thing, or some similar thing, about the death penalty.

In any event, Garvey’s argument is that the death penalty cuts off the possibility of atonement, and therefore the commutation of the sentences of those on death row is justified because it keeps open the possibility of atonement. Thus Garvey says, “Extending mercy and remitting an offender’s death sentence reflects a choice to preserve the possibility of reconciliation between victim and offender. In other words, extending mercy to death-sentenced offenders can be justified .. as a way to preserve the chance, however remote it may seem, that offender and victim might some day be reconciled.” (33).

Garvey here wants to justify not just the commutation of particular sentences, but a blanket commutation. But his argument seems to quick to entitle him to this conclusion. I think he needs to take more seriously the possibilities that (a) some crimes may be so bad that only the death of the offender can lead to atonement, and (b) atonement in some cases may be impossible, and not just a remote possibility. For Garvey to get the conclusion that a blanket commutation is permissible, he needs not only to show that these possibilities are remote, he needs to exclude them altogether.

Yet I am not convinced he does so. I don’t see, for instance, why death can’t be some form of real reconciliation between victim and offender (and not merely a “fleeting reconciliation” or one that is not secular, as Garvey argues), nor is it clear to me that there are no crimes which conclusively shut off the offender from the moral community, making reconciliation with him impossible. If either of these two things is possible, then a blanket commutation is not justified, only a commutation of those who are still within the bounds of moral community, and whose death is not required as a means of atonement. And note it is within the theory of atonement that such things might be necessary – perhaps another reason to prefer arguing against the death penalty directly, and not via a theory of punishment.

- posted by Chad @ Tuesday, December 02, 2003