The Prospects of the New Proceduralism

The final chapter illuminates the book’s most significant implications. It first highlights the project’s improvements on extant versions of proceduralism. Targeting both legal and philosophical proceduralist critiques, it recounts how they fall prey to the retributivist challenge and unwittingly entail wholesale abolition. The procedural abolitionism developed here, it turns out, has no such shortcomings. The second part of the chapter assesses the book’s contributions to the constitutional debate over capital punishment, analyzing Judge Rakoff’s opinion in United States v. Quinones. Rakoff holds that the specter of irrevocable mistake renders capital punishment unconstitutional on substantive due process grounds; this ruling suggests that substantive due process furnishes the vehicle by which proceduralism could make inroads with a future Supreme Court. However, Quinones was overturned, mainly because its emphasis on error correction conflicts with the hallowed value of finality. Chapter 5 argues that the associated concerns do not generate reasons to reject abolitionism.

The Necessity of Execution

This chapter investigates a more robust thesis about execution—namely, that legal authorities are morally required to execute some murderers. As in the previous chapter, the goal is to present a compelling case for the existence of retributivist reasons to execute. The first half grapples with the most rigorous philosophical defense of the death penalty in the literature: Matthew Kramer’s purgative rationale holds that moral communities must execute defilingly evil offenders in order to avoid complicity with the offender’s disparagement of humanity. Kramer’s program is noteworthy owing to its focus on extreme wrongdoing and corresponding modesty of scope. The second half reconstructs Immanuel Kant’s retributivist justification of capital punishment. Kant’s work is the locus classicus of retributivist arguments for the death penalty, and he offers a sophisticated justification of capital punishment that is philosophically important in its own right. Chapter 2 also canvasses some of Kant and Kramer’s vulnerabilities.

Death and Retribution

Any retributivist defense of capital punishment must establish that execution is a morally permissible punishment for at least some first-degree murderers. This chapter makes a case for the permissibility of execution, suggesting that it is sometimes a proportionate punishment. The existence of reasons to execute is thus made plausible. After outlining objections to competing deterrence theories of sentencing, the chapter returns to retributivist considerations, illuminating the affinities of cardinal proportionality and the lex talionis, which states that offenders deserve whatever harm they impose on their victims. Although the talion has a suspect reputation, it can be understood as standing for the unobjectionable principle that punishments must reproduce the relevant wrong-making features of the offense. Accordingly, it can be used to establish the cardinal proportionality of murder and execution. Chapter 1 concludes by showing how the retentionist can repel abolitionist attacks based on the right to life and human dignity.

The Argument for Abolition

The centerpiece of the book defends the principle of remedy and the expanded asymmetry principle, and presents the resulting abolitionist argument. The principle of remedy states that legal institutions must correct their mistakes, and the asymmetry principle holds that underpunishment is preferable to overpunishment. The chapter begins with a brief for the necessity of remedying mistakes, discussing the contemporary legal practices that endorse this obligation and detailing its retributivist bona fides. After clarifying the nature of the imperative, it shows how it functions alongside irrevocability to ground abolitionism. The chapter also unpacks the retributivist challenge and the pro tanto reasons to punish implicit therein. To repel the challenge, an appeal is made to the expanded asymmetry principle, which states that legal institutions must err on the side of leniency even in the face of retributive reasons to punish. After reconstructing recent justifications of the principle, and illuminating their infelicities, a new defense is supplied.

Introduction

The introduction situates Against Capital Punishment within larger philosophical debates about punishment. It begins by reminding readers why punishment needs to be justified at all, emphasizing punishment’s normative significance in liberal polities, where any coercive state action must survive rigorous scrutiny. Moving to capital punishment, it explains why it is most philosophically profitable to focus on the retributive slice of the debate and exclude communicative, restitutive, and consequentialist competitors: restitutive and communicative theories are fundamentally incompatible with execution, and deterrence theories stand or fall with social scientific research, which fails to establish execution’s preventative effect. The introduction also lays out the dialectical strategy of the book, which is to present the strongest possible case for the retentionist program, then develop an abolitionism that defeats this view.

The Irrevocability of Execution

Chapter 3 furnishes the first step of the book’s main argument by defending the irrevocability of execution. The irrevocability of the death penalty might seem self-evident, but Michael Davis argues that the death penalty is not irrevocable; the state, he says, can compensate the wrongly executed by posthumously advancing their personal interests. Davis’s efforts are strengthened by considerations adopted from the literature on the metaphysics of death and posthumous harm, especially the Pitcher–Feinberg theory of posthumous harm. This chapter vindicates irrevocability by showing that the revocability rejoinder overlooks the full set of practical requirements incumbent on legal institutions in the wake of wrongful punishment. Legal institutions must compensate the wrongfully sanctioned and return to them control over their lives. Because control cannot be returned to the wrongly executed, execution is irrevocable. Chapter 3’s second aim is to defuse the problem of controversial consequences by demonstrating the revocability of incarceration.