A Sound Retributive Argument for the Death Penalty

By Davis, Michael | Criminal Justice Ethics, Summer-Fall 2002 | Go to article overview

A Sound Retributive Argument for the Death Penalty


Davis, Michael, Criminal Justice Ethics


Claire Finkelstein's primary conclusion is that "retributivism fails to justify the use of death as punishment." (1) By "justify," Finkelstein seems to mean no more than "show to be morally permitted." I shall "justify" the death penalty in a somewhat stronger sense. I shall show it to be not only sometimes morally permitted but, all else equal, something that reason sometimes recommends.

Finkelstein seems to understand her conclusion as a universal truth, true everywhere and always. She reaches it by refuting a number of common retributivist arguments for the moral permissibility of the death penalty and drawing from those individual refutations a provocative secondary conclusion: "a desert-based theory of punishment is particularly ill-suited to [justifying the use of the death penalty]." (2) If her list of retributive arguments is complete (and her refutations sound), she is entitled to those two conclusions. If she has missed even one sound retributive argument, she is not. I believe that she has missed at least one. It is that argument that I present here. If it is sound, the death penalty can be justified retributively and both her conclusions are false.

I Two Kinds of Retribution

Finkelstein begins her discussion of retributivism with an oversight that may explain how she missed the argument I am about to make. While recognizing that the literal form of lex talionis--the criminal deserves in punishment the same harm that the crime caused--is not a popular position even among staunch retributivists, she still seems to suppose that all forms of retributivism must proportion punishment to the harm done (at least for the major intentional crimes). The retributivist "would seek to inflict on the perpetrator by way of punishment the nearest morally permissible form of punishment to the act the perpetrator committed." This is the "moral equivalence" ("nearest") form of lex talionis. (3)

All forms of the lex talionis use the harm the crime does as a major component when determining equivalence. All forms of the lex talionis, therefore, have trouble with the enormous diversity of crimes characteristic of any sophisticated legal system. Too many crimes do no harm--in any useful sense of "harm." Any plausible retributivism must be able to assign penalties to many "harmless" crimes, everything from attempted murder to reckless driving, from failure to place a tax stamp on a liquor bottle to conspiracy to commit embezzlement. For that reason, a number of retributivists have tried to understand punishment as taking back (or canceling) the unfair advantage the criminal gets from the crime as such (or, at least, the value of that unfair advantage) rather than as returning something like the harm he did. Here is an example of the method by which that sort of retributivism would assign penalties to crimes:

1 Prepare a list of penalties consisting of those evils (a) which no rational person would risk except for some substantial benefit and (b) which may be inflicted through the (relatively just) procedures of the criminal law.

2 Strike from the list all inhumane penalties.

3 Type the remaining penalties (by evil imposed), rank them within each type (by amount of that evil), and then combine rankings into a scale.

4 List all crimes.

5 Type the crimes (by interest protected), rank them within each type (by degree of protection), and then combine rankings into a scale.

6 Connect the greatest penalty with the greatest crime, the least penalty with the least crime, and the rest accordingly.

7 Thereafter: type and grade new (humane) penalties as in step 3 and new crimes as in step 5, and then proceed as above.

The harm a crime actually does plays no part in this assignment of (maximum) penalties. The "harm" in prospect, if the evil in question is "harm" in any interesting sense, does have a part, but one constrained by considerations of type and grade, the architectonic of a system of criminal justice.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Sound Retributive Argument for the Death Penalty
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.