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.)

Justice Does (Unfortunately) Have a Price in a World of Scarcity

Mark D. White

Recently, it was reported that the state of Missouri started providing cost estimates of various punishments to judges during the sentencing phase of criminal trials. Of course, this set off a firestorm of controversy regarding the appropriate role (if any) that the financial cost of punishment—particularly imprisonment—does or should play in a judge’s decision-making. Those who follow the economic approach to law would see nothing untoward in this; to that way of thinking, monetary costs are just one element of the cost-benefit analysis that informs every legal decision, including optimal sentencing. If prison costs rise, then judges should impose imprisonment less often (or to a lesser degree), even though that may reduce deterrence and increase costs (by a lesser amount) elsewhere, as long as total welfare in society is maximized.

But those who hold to a more traditional view of justice may recoil at this reduction of legal decision-making to dollars and cents, especially in an area such as criminal law which relies on concepts like wrong, guilt, and desert, claiming instead that “justice has no price.” And I would agree that justice has no price—in an ideal world. In such a world, every criminal offender would be apprehended, all defendants would be tried in court before a jury, and every convicted criminal would receive his deserved punishment. What that person “deserves” is subject to debate, of course, but it would not be determined by “mere” monetary costs, but rather some version of retributive justice that demands punishment in proportion to one’s crime.

Alas, we do not live in an ideal world. Ours is a world of scarce resources, and has long been so; resource constraints did not emerge fresh with the current economic malaise. If society were to apprehend, prosecute, and punish every criminal offender according to the severity of his crime, we would have no resources remaining for education, national defense, or any other goals that people may feel government should pursue. As every introductory economic student learns on the first day of class, scarcity makes hard choices necessary, and the hardest ones occur when principles—such as justice—must be compromised.

Because of scarcity of resources, we must balance the principle of just punishment with the other principles and goals that society regard as important (and that we elect our representatives to promote). We can certainly prioritize these principles and goals, but we have to pursue them simultaneously, and somehow allocate our limited resources among them. Of course, people responsible for budgeting, from the smallest municipality to the entire country, face that problem every day. But even once such allocations are made, the problem does not end; rather, it is shifted to the next level of decision-making down the line, including to those responsible for making decisions in the criminal justice system. And among these decision-makers are judges, who must balance legal principles in their courtrooms every day, from seemingly minor evidentiary rulings to sentencing decisions of potentially life-shattering proportion.

But are costs—or consequences in general—an appropriate factor in balancing principles of justice? Consider the lone police officer who witnesses two persons in the process of a home invasion. Once they notice her, each suspect runs in a different direction. The officer knows both should be apprehended, since both are equally suspect of wrongdoing, but she can only catch one. Which one? Perhaps she recognizes one suspect from previous warrants, or she thinks he may be key to a larger ongoing investigation. Maybe the state would have a better case against one, or he may simply be slower and therefore easier to catch. Any way she chooses, a choice must be made, and if the two suspects are equally deserving of apprehension, then a focus on justice is not going to help make the decision—but consequences might. A prosecutor may make a similar decision with respect to two cases of equal merit in terms of justice, but one of which will be much more costly in terms of time, money, and resources. If considerations of justice do not make the choice clear, costs might.

Judges are no less immune to these tragic compromises than police officers and prosecutors. It does no good to ignore the fact that justice does have a price—in a world of scarcity, it must. Apprehension, prosecution, and punishment of criminals all take resources from other important needs and goals, so their costs do need to be considered, both externally (in comparison to other societal goals) as well as internally (within the criminal justice system itself). But ideally, costs will be a secondary consideration only, a way to help make tough decisions when balancing principles of justice, and not the primary concern.

(For more on balancing principles within criminal justice, see the earlier post here.)

Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice

Mark D. White

I recently posted a new paper to SSRN, "Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice," forthcoming in my edited volume Retributivism: Essays on Theory and Policy (Oxford University Press):

In this chapter, I suggest a way that deontological retributivists can accommodate the compromises to the ideal of just punishment made necessary in the real world by scarce resources and competing societal needs and goals (a context also emphasized by Cahill and Markel in their chapters in this book). I consider recent work supporting consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but find the quantification of just punishment problematic due to the ideal or principled nature of justice inherent in the concept. Instead, I propose a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” I compare it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argue that my conception is both more flexible while adhering to a more deontological understanding of retributivism.

This is a philosophical companion of sorts to my chapter in Theoretical Foundations of Law and Economics, "Retributivism in a World of Scarcity" (pre-print draft available at SSRN here), which laid out the economic problems with a deontological retributivism that mandates just punishment of all criminals. The new paper suggests a way that deontologists can be comfortable with the compromises in just punishment that scarcity demands, drawing on a conception of balancing principles drawn from the thought of both Immanual Kant and Ronald Dworkin, an ongoing project of mine which is previewed here (as well as in my forthcoming Kantian Ethics and Economics: Autonomy, Dignity, and Character from Stanford).