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The Implications of Human Fallibility for the Future of Capital Punishment

Mark D. White

In a recent op-ed piece in The Wall Street Journal, Barry C. Sheck of the Innocence Project detailed the wrongful execution in Texas of convicted murderer Claude Jones after then-Governor George W. Bush was not informed of Jones' request for a last-minute DNA test on the one piece of physical evidence tying him to his alleged murder. Only recently, after six yeatrs of litigation and a decade after the execution, the DNA test was performed, and the physical evidence--a single hair--was discovered to belong to the victim, not Mr. Jones.

Mr. Scheck uses this harrowing story to argue in support of a bipartisan, federal bill now in the House, established a National Criminal Justice Reform Commission which would mandate improved practices to lessen the incidence of such travesties. But I do not feel that would go far enough, and neither does Thom Brooks of Newcastle University, who argues in his "Retribution and Capital Punishment," a chapter in my forthcoming edited volume Retributivism: Essays on Theory and Policy (Oxford, 2011), that the irreversibility and impossibility of post-reversal compensation provides a retributivist argument against capital punishment.

Unlike other scholars who argue (explicitly or implicitly) that all punishment should be eliminated because of the chance of wrongful conviction, Brooks argues that it is the unique nature--the finality--of capital punishment that should trouble us. If convictions with lesser punishments are reversed, then the penalties can be wholly or partially "refunded": fines can be paid back, and time in prison could be compensated for (imperfectly, of course, but to some extent). Stigma and harm to reputation are more difficult to repair, but steps can be taken along those lines as well. But once a person is executed, obviously he or she--nor the surviving family members--can never be "made whole." This, in Brooks' opinion (and mine), should make even a hardened retributivist question the balance of justice inherent in capital punishment given even the slightest possibility of human error in the criminal justice system. Given that possibility of error, retributivists (all of whom are steadfastly against punishing the innocent, regardless of their views on punishing the guilty) should not support a punishment that cannot be even partially reversed if the conviction is later found to be faulty.

Speaking for myself, one of those hardened retributivists, I firmly believe a murderer, absent any extenuating circumstances, deserves to be executed, but only if we know with 100% certainty that he or she is guilty. But since we can never know any person's guilt with absolute certainty, we should not impose an absolute sentence like death. (Furthermore, my libertarian nature makes me very wary to grant the state the power to execute its own citizens, but that's a different argument for a different day.)

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