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The Irrevocability of Capital Punishment Benjamin S. Yost Published in Journal of Social Philosophy, 42. 3. pp. 321-340 (2011) PRE-PRINT VERSION, DO NOT CITE
Introduction
One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no other sufficiently similar penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution, and the harm or loss that it causes, is irrevocable. If it is true that sufficiently similar penalties to execution exist, it follows that states should abolish capital punishment. 1 Those who press this argument usually assume that a lengthy period of incarceration is sufficiently similar to execution to make the argument go through. In its strongest and simplest form, the irrevocability argument is a conceptual one. It holds that the death penalty is necessarily irrevocable, not just that it is often irrevocable.^2 One could construct a rather complicated abolitionist argument based on the rarity of revocability – for example, something along the lines of “even one instance of an irrevocable punishment is morally repugnant enough to prohibit the punishment” – or an argument that cites the rarity of revocability as one reason among others to abolish capital punishment. This means that if the conceptual irrevocability argument fails, the abolitionist need not give up on irrevocability altogether. However, if it were granted that that the death penalty is sometimes, even if very rarely, revocable, the abolitionist would have a much more difficult row to hoe. She would have to explain why we should not affirm retentionist policies that would restrict the death penalty to those types of cases in which it is revocable. Moreover, a modified irrevocability argument would lack much of the rhetorical bite of the conceptual versions. If it is granted that the death penalty is sometimes revocable, then courts would have to decide on an individual basis whether the case at hand is one that falls within the ambit of revocability. And friends of the death penalty would find ways to argue in affirmative in every instance. So there are very good reasons for the abolitionist to want the stronger argument to succeed.
(^1) This is an important argument for various reasons that I discuss elsewhere. Notably, its success is independent of the debate over the morality of execution. While the first premise contains a normative element, it is a relatively uncontroversial one, at least insofar as one believes that legal institutions ought to punish only the guilty. Furthermore, the premise in question gets its normative force from principles of 2 legal justice. To say “punishment X is irrevocable” is shorthand for saying that the harm or loss incurred by the punished person is irrevocable. The practice of a specific kind of punishment is always revocable, so the death penalty is clearly revocable in the sense that U.S. legal institutions could decide to forbid it.
If the strong irrevocability argument is to work, it must show not only that execution is in principle irrevocable, but also that incarceration is in principle revocable. If incarceration were irrevocable, the alternative to execution would also be prohibited, and the abolitionist argument would face an extremely high burden. It would have to show that the irrevocability of execution is a sufficient reason to prohibit the penalty even in the absence of acceptable penalties that achieve similar deterrent and retributive effects. Furthermore, if incarceration were shown to be irrevocable, the abolitionist argument would slide into a radical argument for the abolition of prisons, an argument that most death penalty abolitionists do not want to defend. In sum, the concept of irrevocability needed for the strong irrevocability argument must be one that extends to all cases of execution but not to ordinary incarceration. This paper will argue that execution is always irrevocable. Although this supports the strong abolitionist argument, I will not defend that argument here; I will instead adopt the narrower task of defending the irrevocability of execution. To be sure, many think that the irrevocability of execution is self-evident. It appeared this way to Justice Brennan, who wrote in Furman v. Georgia that “the finality of death precludes relief” (201). But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that the death penalty is not irrevocable.^3 While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Thus strengthened, the argument deserves careful consideration. My consideration of this larger argument proceeds in a fairly straightforward fashion. I begin with a quick sketch of Davis’ argument, then, turning to the literature on posthumous harm, I show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capital punishment. The crucial point here is their claim that the thwarting of posthumous interests counts as harm. The Pitcher-Feinberg theory of harm can be easily converted into a theory of posthumous benefit, which in turn supports Davis’ claim that the dead can be compensated. After establishing the plausibility of this notion of posthumous benefit, I conclude by arguing that the robust argument fails to make the case against irrevocability, insofar as it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (By wrongful punishment I mean both punishment of the innocent as well as improper punishment of the guilty.)
(^3) This essay can also be found in Michael Davis, Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments (Lanham: Rowman & Littlefield, 1996).
for compensating wrongly punished people in the first place. The reason is that we should “make up as best as we can for any wrong we do another.”^7 Clearly, imprisonment is substantially revocable, even in Davis’ sense. I would venture that most people would trade a wrongful arrest followed by two days in jail for $100,000 and an energetic, widespread public announcement of their innocence. (I would gladly make such a trade.) Again, the $100,000 does not undo the time spent in jail – it does not return the wrongly punished person to the state she was in before the punishment – but it does pay back the wrongly punished person in a way that is satisfactory to her.^8 Davis contends that execution is also revocable in this sense, and that the third premise in the abolitionist argument is false. If Davis is right, and the death penalty and imprisonment are not distinguishable in terms of substantial revocability, the abolitionist argument fails. At first glance, many are likely to think that the death penalty is distinguishable from punishment in this sense. Almost everyone I have surveyed, both philosophers and non- philosophers, thought as much. The intuition here seems to be that since a wrongfully executed person is dead, he cannot be the recipient of compensation. And since he cannot receive compensation, execution is not substantially revocable. But, Davis points out, this view presumes that compensation must be given during the wrongly punished person’s lifetime. And this presumption needs to be argued for.^9 Davis admits that there is an obvious argument at hand. The argument, as he puts it, is that “death completes one’s biography, terminates one’s interests, and so makes compensation impossible by making it impossible for anything more to happen to one.”^10 In short, the dead person doesn’t exist, nothing left of him exists, and so nothing can happen to him. But Davis identifies what he sees as a serious problem with this line of argument: it equates peoples’ biography with their biological existence. As such, this view conflicts with an intuition about death that finds expression in everyday practice and can be traced back to Aristotle.^11 The
(^7) Ibid.: 149. (^8) Of course the two days spent wrongfully imprisoned might carry the risk of losing something worth more than $100,000, such as finding the love of one’s life. In this case, imprisonment might not be substantially revocable. But it does not follow that imprisonment is, in principle, substantially irrevocable. 9 10 Davis, “Is the Death Penalty Irrevocable?,” 146. 11 Ibid. Nichomachean Ethics , bk I, ch xi. This intuition also finds expression in practices of posthumous punishment. The first-century Roman emperor Domitian was seen by his countrymen as a spectacular failure. As a result, the Senate destroyed all the records of his reign, and effaced inscriptions that carried his name Valerie Hope, “The City of Rome: Capital and Symbol,” in Experiencing Rome: Culture, Identity and Power in the Roman Empire , ed. Janet Huskinson (London: Routledge, 2000), 82. Both the Catholic Church and the Church of England posthumously
intuition here is that our biographies do outlive our lives; this is why we buy life insurance and recycle. More specifically, our biography is partly composed of our settled goals and interests, and these have a type of existence that continues after our death. Our biographies outlive our lives in the sense that our interests can be posthumously advanced or thwarted. For example, with the passage of health care reform, it made sense to say that a part of Ted Kennedy’s biography was written. For Davis, this intuition tells against the temporal coextensiveness of biography and biological life. And if our biography, in the form of our interests, can persist beyond our biological lives, death does not put us “beyond all benefit and harm.” 12 If dead people can be recipients of benefits, in the sense that their interests can be advanced after their deaths, then wrongly executed people can be compensated after their deaths. Take the following example (which is my own, as Davis doesn’t provide one): a single father works two factory jobs to ensure that his daughter can afford college. This labor reflects the fact that he has devoted his life to one purpose: making sure that his daughter has a life better than his own. Unfortunately, he has an incurable disease and knows he will soon die. Then the father is charged with, found guilty of, and executed for a murder he did not commit. After his execution, his innocence is discovered. The state exonerates him and proclaims his innocence in every media market, securing his reputation. The state then pays the man’s daughter one million dollars. In this example, it is hard to argue that the interests most important to the father are not better served by his execution and subsequent compensation than they would be by his continued existence. If the father had been given a choice between living the rest of his life as it would have been had he not been executed, and being executed and compensated in this way, it’s plausible to think that the father would have chosen to be executed. Even if he would not have made this choice, he certainly would have felt that his execution was “worth it” in some important sense. If this is the case, then the state has compensated the wrongly executed man, so long as we accept Davis’ account of compensation. This example is admittedly quite specific, but all Davis needs to make his argument is for us to find it plausible that someone could be compensated for wrongful execution. It does not matter whether most, or even many, wrongfully executed people could be compensated. This is because the argument he is opposing is, as I mentioned above, committed to the view that the death penalty is always irrevocable. So if any persuasive example can be provided, the
punished heretics by disinterring and burning them Christine Quigley, The Corpse: A History (Jefferson, NC: McFarland & Company, 1996), 281.. 12 Davis, “Is the Death Penalty Irrevocable?,” 146.
intuition, Pitcher develops an example of a philosopher who has spent his life working on an elaborate metaphysical system. In the example, the philosopher dies before his work sees the light of day. Pitcher then asks us to consider two possible worlds. In the first, the philosopher’s system is posthumously promulgated, and after a period of dissemination it is widely acclaimed as one of the greatest achievements in the history of philosophy. The second possible world is exactly the same as the first, except that a disgruntled neighbor burns down the philosopher’s house, destroying his manuscripts before anyone can read them. Pitcher thinks it obvious that the philosopher is better off in the first world, and worse off in the second. Since it is the malicious neighbor who causes the philosopher to be worse off, the neighbor’s actions in the second world harm the philosopher. There is also a moral type of intuition that is worth mentioning here. Many people would agree that it is wrong for doctors to harvest a newly deceased person’s organs against that person’s wishes, when those wishes are known to the doctors.^18 But this view is hard to make sense of unless we admit the possibility of posthumous harm. If we did not believe that the dead person was harmed by the harvesting of her organs, why else would we say that the doctors did something wrong? Pitcher admits that such intuitions, while compelling, still leave us with a puzzle: the dead, if they exist at all, are mere piles of dust. How can piles of dust be harmed? The puzzle can be solved, Pitcher thinks, by showing that it is not the dust that is harmed, but rather the dead person. To clarify this point, Pitcher distinguishes between two ways one can describe a dead person. First, one can describe her as she was before she died – this is to describe her as an “ante- mortem” person. Second, one can describe her as she is now, after her death – this is to describe her as a “post-mortem” person.^19 The second description applies to the dust in the grave, but the first does not. Pitcher goes on to say that only ante-mortem persons can be harmed.^20 It is the living philosopher, not the dead one, who is harmed by the neighbor’s actions. Now at first, this claim appears unacceptable, insofar as it seems to solve the problem of the subject at the cost of endorsing backward causation. But Pitcher denies this.^21 He thinks that all we need to deflect the charge of backward causation is the proper conception of harm. He defines harm as the hindering or thwarting of someone’s important interests or desires. In other
(^18) Pitcher discuss an example in which a son promises his dying father that he will bury him in the family plot, but sells his corpse to medical researchers instead. The moral issues in Pitcher’s example are more complex, insofar as promises are involved, and so his example does not make the case as clearly as the one I have chosen. 19 20 Pitcher, “The Misfortunes of the Dead,” 161. 21 Ibid., 162. Ibid., 164.
words, Pitcher assumes a preference theory of well-being.^22 As I noted above, it is this theory of well-being with which Davis’ views seem to be most naturally at home. Even though Davis never endorses a specific theory of well-being, the congruence of his argument with preference theories can be seen when he says “our interests exceed bodily survival. Our biography could have a happy ending even if we died sad.”^23 To defend this conception of harm, Pitcher presents another example. A man’s son dies in a plane crash thousands of miles away, unbeknownst to him. Most people would say without hesitation that the son’s death harms the father. Yet, Pitcher points out, this claim does not entail action at a distance – “the plane crash sending out infinitely rapid waves of horror, as it were, diminishing [the father’s] metaphysical condition.”^24 There is no physical causality here, nor any alteration of the father’s metaphysical state (what more recent literature usually calls “intrinsic states”), yet many would say that the crash harmed him, and did so at the very moment that it happened, even though he was completely unaware of it. Davis thinks that this view is true, and it is true because the father’s interests in his son’s well-being are damaged. That is, this example is meant to show that harm can occur even when it does not directly affect the harmed person, but affects only his interests. If this conception of harm is persuasive, if harm can occur without incurring any changes in a person’s intrinsic state, then harm can befall ante-mortem persons without causing any change in their intrinsic state. So understood, posthumous harm does not entail backward causation. What posthumous harm does entail is the view that the occurrence of a harmful event “makes it true that during the time before the person’s death, he was harmed.”^25 Here the sense of “makes true” is, Pitcher asserts, intuitive and devoid of mystery. To modify the example he uses to support this point, if an asteroid were to destroy the world sometime during the presidency after Barack Obama’s, this event would make it true today that Obama is the penultimate president of the United States. There is clearly no backward causation at work here; we have only the posthumous ascription of a property to Obama. Just like post-presidency events can make it true that Obama is the penultimate president, so too, Pitcher says, posthumous
(^22) A theory of well-being is a theory of what makes our lives good for us. I am here using the division of theories of well-being standard in the Anglo-American literature Roger Crisp, “Well-Being,” http://plato.stanford.edu/archives/win2008/entries/well-being/. Mental state theories of well-being hold that well- being is a matter of having the right mental states; hedonism being the most common mental state theory. Preference (or desire) theories hold that well-being is a matter of the satisfaction of one’s preferences. Objective list theories hold that well-being consists in a list of intrinsically valuable things such as friendship or autonomy. 23 24 Davis, “Is the Death Penalty Irrevocable?,” 146. 25 Pitcher, “The Misfortunes of the Dead,” 165. Ibid., 168.
being are going to be satisfied” is true. In significantly advancing the man’s most important interests, the state compensates him for his wrongful execution.
The plausibility of posthumous harm
Of course, the Pitcher-Feinberg account of posthumous harm and benefit is not immune to criticism. In this section, I will explore what I think are the most powerful objections to the view.^28 If these objections succeed, then Davis’s argument is on shaky ground, insofar as it relies on the Pitcher-Feinberg theory of well-being James Stacey Taylor provides two arguments that revive and strengthen the accusation of backward causation. Taylor first attacks the Obama analogy, pointing out that that the property of being “the penultimate president of the United States” is a sequential property, a property someone possesses at a particular point in a sequence.^29 But harm is not a sequential property; it is not ascribed to someone on the basis of being in a particular position in a certain sequence. Because of this disanalogy, the fact that posthumous events can result in the ascription of sequential properties to an ante-mortem person does not support the claim that harm can be ascribed to an ante-mortem person. Taylor’s second line of attack is a generalization of the first. Taylor argues that all analogies presented by philosophers trying to ward off the charge of backward causation fail in the same way. In none of the analogies is harm the same type of property as the properties that can be retroactively ascribed in an unproblematic fashion (that is, ascribed in a way that avoids backward causation). Most important for our purposes is his attack on the “thwarted interest” group of examples. Taylor agrees that it is uncontroversial to say that a future event can make it true that a person’s current interest is thwarted.^30 And he agrees that this claim does not entail backward causation. But Taylor argues that this does not prove that posthumous harm does not entail backward causation. After all, it is controversial to say that thwarting a dead person’s interests harms the ante-mortem person. It is controversial because it is not clear that posthumous harm does not involve backward causation. Taylor’s argument is not immediately perspicuous, but I understand it to go as follows. Pitcher and Feinberg’s examples are supposed to convince us that the animal called posthumous harm, with its suggestion of backward causation, is really less dangerous than it appears. To do
(^28) For an overview of the objections to the posthumous harm thesis, as well as a defense of the thesis against those objections, see Taylor, “Harming the Dead.”. 29 30 James Stacey Taylor, “The Myth of Posthumous Harm,”^ American Philosophical Quarterly^ 42, no. 4 (2005): 314. Ibid.: 315.
so, Pitcher and Feinberg trade on the uncontroversial point that when a future event thwarts a current interest, the current interest is thwarted. But that does not yet show that the ascription of posthumous harm would not require backward causation, insofar as “interest-thwarting” and “harming” are two different things. To put it more technically, what Pitcher and Feinberg must show is that “harm is the same type of property as those whose retroactive ascription to persons is metaphysically unproblematic.”^31 So Taylor’s objection is that Pitcher and Feinberg have not met their argumentative burden – since posthumous harm is controversial, they must show that the property of being harmed can be ascribed in the same way as the property of being the penultimate president of the U.S. and the property of being thwarted, that is, without implying backwards causation. But the examples do not show this, and so Pitcher and Feinberg assume what they must prove. Of course, Pitcher and Feinberg could respond that their conception of harm as the thwarting of interests does show that the properties are of the same kind. But Pitcher and Feinberg can’t simply assume the truth of this conception, as this would leave them open to charges of begging the question. That is, since Pitcher and Feinberg argue for their conception of harm by way of examples against which Taylor offers some fairly persuasive criticism, this conception seems vulnerable to Taylor’s main argument, and so they cannot marshal it in defense of their position. While Taylor argues that posthumous harm proponents cannot solve the timing problem, Walter Glannon argues that they cannot solve the problem of the subject. Glannon stresses what he sees as the inadequacy of the posthumous harm proponents’ conception of harm. Glannon contends that any conception of harm, and any larger theory of well-being, must account for the fact that harm is something that makes someone actually worse off by “causing adverse changes in his body or mind.”^32 More technically, Glannon claims that harm must involve changes to someone’s intrinsic properties. (Intrinsic properties are properties that something has in virtue of what it is in itself. Extrinsic properties are relational; they are properties that something has in relation to things that are not itself.^33 ) In other words, Glannon advances a mental-state conception of harm. Glannon thinks this conception is the proper one because it captures two basic intuitions: harm must be experienced in order to exist, and harm must harm the actual person.
(^31) Ibid. (^32) Walter Glannon, “Persons, Lives, and Posthumous Harms,” Journal of Social Philosophy 32, no. 2 (2001): 132. (^33) Glannon, following Feldman, distinguishes between intrinsic harm, which is harm we experience, and extrinsic harm. Extrinsically harmful events are those whose occurrence makes us worse off than we would otherwise be Ibid.: 127. It is a bit odd that Glannon adopts these terms, since he must think that extrinsic harm is not really harm at all.
view that we should understand harm as a change in one’s intrinsic properties, nor does he argue for the view that it is most plausible to understand a harming relation as a causal relation. (In my view, Taylor’s objections assume that harm must alter someone’s intrinsic properties, and that he is therefore vulnerable to the same charge as Glannon, but I will not argue that point here.^39 ) So it seems to me that that the nature of harm is still an open question, and that one’s view on this matter will depend on privileging one of our conflicting pretheoretical intuitions. Since one’s stance on posthumous harm will derive from one’s conception of harm, the existence of posthumous harm must also remain an open question. But the defender of Davis has one final tactic that may lead to a conclusive result, one that rests on Shelly Kagan’s distinction between persons and lives.^40 Kagan adopts a roughly mental- state theory of well-being, but argues that a person has a life that can be made better or worse off in virtue of extrinsic facts about her. If Kagan’s conception of this distinction and his claim that changes in the quality of a person’s life are morally salient are coherent, then we have a theory that seems to accommodate the intuitions of both mental-state and preference theories of well- being. In Kagan’s hands, the sorts of intuitions invoked by the preference theorist are used not to defend a preference theory of well-being, but to articulate and defend the existence of a life that merits our concern and respect even though it is distinct from the existence of a person. It will turn out that someone’s life can be made better or worse after she is dead. So let us turn to Kagan’s distinction. For the sake of this paper, we will assume Glannon’s definition of a person as a unity of body and mind, the latter maintaining psychological connectedness between the person’s past and future mental states.^41 (Kagan’s account of the person is slightly more modest.) Kagan argues that changes in well-being must be a matter of changes to intrinsic states of the person.^42 His view differs slightly from mental-statism, insofar as
(^39) It should be noted that Taylor’s objections do not rely only on a mental-state theory of well-being. He also develops an argument on the basis of the principle of parsimony: “if one can account for one’s intuitions without having to develop a sophisticated philosophical framework to do so, then one should accept the simpler account that is available to one” Taylor, “The Myth of Posthumous Harm,” 315. In short, Taylor contends that the intuitions central to the Pitcher-Feinberg account can be explained in ways that do not require us to posit a complicated and controversial theory of posthumous harm, and that therefore we ought not to endorse such a theory. I think this strategy fails on two counts. First, Taylor never provides an alternative explanation for the intuitions pumped by Pitcher’s “father harmed by his son’s unknown death” example ———, “The Myth of Posthumous Harm,” 317. Taylor simply denies that this is a problem; he denies that the father is harmed. But for this denial to be anything more than an assertion, it must rely on a mental-state theory of well-being. Second, while Taylor does provide an alternative account of the intuitions pumped by Pitcher’s “philosopher harmed by the defeat of his project” example, this attempt falls short insofar as it accounts only for the wrong done to the philosopher, not for the harm. I want to thank an anonymous reviewer for reminding me of the importance of Taylor’s use of the principle of parsimony. 40 41 Shelly Kagan, “Me and My Life,”^ Proceedings of the Aristotelian Society^ 94 (1994). 42 Glannon, “Persons, Lives, and Posthumous Harms,” 128. Kagan, “Me and My Life,” 316.
he holds that changes affecting only the body, and having no effect on mental states, can make a difference in one’s well-being, but since this difference is not relevant to the issue of posthumous compensation, we can ignore it. Life means “biographical life,” “personal history,” or the set of facts in which a person figures as a subject.^43 A person’s life includes more than just facts about his body and mind, it also includes extrinsic facts, facts about his reputation, the well-being of his children, the fate of his projects, and so on.^44 Kagan’s main argument is that unlike changes in well-being, changes in how well a person’s life is going need not (though they may) involve changes in the intrinsic states of a person; how a person’s life is going is independent of a person’s level of well-being. This is because lives involve extrinsic facts about the person. But the argument does not rely only on the metaphysical distinction between persons and lives. It gets much of its force from the way it accommodates the type of intuition that preference theorists use to defend their theory of well- being. Kagan’s favorite example is that of a businessman who dies happily convinced that his wife loved him and his business was successful; in Kagan’s example, the man is seriously deceived. Kagan thinks that most of us would feel confident in stating that something went wrong with the man’s life, even though nothing went wrong in terms of his intrinsic states, and he was never aware of the deception. What went wrong was a matter of extrinsic facts about the businessman, facts that constitute part of his history, and are therefore intrinsic to his life.^45 Kagan agrees with the preference theorist that our intuitions are correct when they tell us that something has gone wrong here. Kagan differs from the preference theorist in claiming that what has gone wrong has no effect on the man’s well-being. If Kagan’s argument works, it supports Davis’ conclusion while freeing his argument from a commitment to a preference theory of well-being. (It is hard to know what Kagan himself thinks of posthumous harm or benefit, since he never discusses the issue.) As I noted above, Davis appears to endorse a preference theory: all of his examples of posthumous compensation involve the furthering of impersonal interests and affect only extrinsic properties of the
(^43) Ibid.: 319-20. (^44) For more on this, see Glannon, “Persons, Lives, and Posthumous Harms,” 128-30, James Rachels, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press, 1986), 24-7.. For objections to Kagan’s use of this distinction, see Taylor, “Harming the Dead,” 196-8.. Glannon agrees with Kagan’s distinction, and one of his main criticisms of the proponents of posthumous harm is that they confuse the two metaphysical types. He thinks that all of the intuitions marshaled by proponents of posthumous harm can be shoved into the category of “life.” Posthumous events, he contends, can make a person’s life worse off, but, for reasons canvassed above, they cannot make that 45 person worse off Glannon, “Persons, Lives, and Posthumous Harms,” 128.. Kagan, “Me and My Life,” 320.
well-being, it is reasonable to say that a person can be compensated even when her well-being cannot be augmented, and therefore to say that she can be compensated after her death.^48 After all, compensation is the attempt to make up for a wrong done to someone, and when compensation addresses the interests that are the most important to the person who has been wronged, it makes sense to think that the person has been compensated.^49
Irrevocability vindicated
What I have argued so far is that Davis’ argument against irrevocability is, in some sense, quite powerful. If one accepts that compensation is sufficient for revocation, and if one accepts that it is possible to further a wrongfully executed person’s interests, then the death penalty is revocable. Those who endorse a preference theory of well-being and those mental-statists who find Kagan’s argument convincing have reason to hold that it is possible to further a wrongfully executed person’s interests, and therefore have reason to agree with Davis. I will now show why this expanded revocability argument fails. The problem is that it gets something wrong about revocation: revocation is not, as the argument presupposes, reducible to compensation. In developing this objection I will in fact remain agnostic about whether wrongful execution is compensable. Now, I certainly agree that when someone is wrongly punished, the state ought to compensate her. The state ought to make up for the wrong it has done, and the worse the wrong done, the more the victim ought to be compensated. These statements are true even if the state cannot fully compensate – i.e., compensate in a way that satisfies the requirements of substantial revocation – the wrongly punished person for the wrong done to her. However, compensation is not the only form of redress the state ought to be concerned about.^50 The real failure of the expanded irrevocability argument lies in the fact that it does not take into account the complete package of practical requirements that bind legal systems responsible for undeserved punishments.
(^48) It may be controversial to claim that people often value their projects over their well-being. While I believe this is true, I will not argue for it here. 49 This means that the state cannot compensate wrongly executed people whose only goal in life is to increase their well-being. However, as I have stressed above, the argument against irrevocability needs to show only that some wrongly executed people can be compensated. 50 More governments ought to be concerned about compensation. According to the Innocence Project, only 27 states, the District of Columbia, and the federal government have compensation statutes. In the other 23 states, wrongfully punished people must lobby for a private compensation bill “Compensating the Wrongly Convicted,” The Innocence Project, http://www.innocenceproject.org/Content/Compensating_The_Wrongly_Convicted.php.. I want to thank Jill Graper-Hernandez for bringing this point to my attention.
Before moving to the substance of that argument, I want to make a clarification. My argument is meant to be a conceptual one, in the sense that it is supposed to show that execution is necessarily irrevocable. This argument is meant to defeat Davis’ claim that according to the concept of revocability, execution is not necessarily irrevocable. However, these arguments are “conceptual” in a rather loose sense. The concept of the revocation of wrongful punishment is something close to “putting things aright” or “undoing and making up for” the wrongful punishment. (The literal meaning of revocation is annulment, but as we have seen in the discussion of absolute revocability, punishment cannot be annulled.) Now, this concept does not admit of practical employment without further determination. To use an earlier example, handing a wrongly imprisoned person a bag of nickels does not count as undoing and making up for the punishment. So what we need is a more specific conception of revocation. Davis’ conception is that “we do all in our power to compensate the convict (and what we do is far from negligible) or that we do enough so that he would say, ‘that would make it worth it.’”^51 My argument is this conception is incomplete, and that when we fill it out, when we specify the complete package of practical requirements involved in revocation, we discover that execution is irrevocable. Part of the complete package of practical requirements is the requirement that the state cease the unjust treatment visited upon the wrongly punished person. 52 This general requirement generates more specific requirements: if a paroled sex offender is found to have been wrongly punished, the state must change his legal status from “guilty” to “innocent,” remove his monitoring bracelet, delete his name from the registry of sex offenders, restore his right to vote if it has been taken away, and so on. If an incarcerated thief is found to have been wrongly punished, the state must change her legal status, restore her right to vote if it has been taken away, and let her out of jail. It is important to note that while these requirements are part of any conception of revocation, they are not part of the concept of compensation: a state could conceivably compensate a wrongfully incarcerated person, all the while keeping him in jail. So Davis’ conception of revocation as compensation is insufficient. It is important not only to notice the existence of these requirements, but also to see where they come from. They do not derive solely from the moral principle to which Davis appeals, the principle that we ought to make up for the wrongs that we do to others. Take, for
(^51) Davis, “Is the Death Penalty Irrevocable?,” 150.. Davis himself does make use of the concept/conception distinction. 52 Indeed, what is most important in situations of unjust punishment is that the state cease perpetuating injustice on the innocent person. Dave Eggers’ Zeitoun movingly illustrates this point.
Because control over one’s life is a basic, intrinsic good, to undo punishment or to set things aright is to return to the wrongly punished person control over her life. It is a principle of any reasonable political philosophy and sound common sense that states should not deprive citizens of such goods without a very good reason. It follows that when the state deprives someone of such goods without any reason or for the wrong reasons, as is the case with wrongful punishment, it should give them back immediately. Again, this is not just a point about how the wrongly punished person ought to be treated. As is the case with the requirement to restore the wrongly punished person’s legal status, the requirement to return control of the wrongly punished person’s life is a matter of ensuring the legitimacy of legal institutions. For many non- consequentialist legal theorists, and for many mainstream liberal political theorists, one of the main reasons, if not the main reason, to have legal institutions is to ensure that each citizen has the maximum amount of control over his or her life compatible with other citizens’ control over their own lives.^53 From this broad conception of law, one can extract an account of the purpose of legal coercion: legal coercion is meant to promote people’s control over their lives. By extension, one can construct an account of the legitimacy of legal coercion: legal coercion is legitimate so long as it promotes people’s ability to control their lives. (Of course, legal coercion in the form of punishment need not secure the wrongdoer’s control over her life. Punishment abrogates that control in order to ensure the freedom of law-abiding citizens. So the fact that punishment infringes on the wrongdoer’s control over her life cannot be turned into an argument against punishment.) This is a very general account of the purpose of legal institutions and the legitimacy of legal coercion, but it is meant to be so: I want it to reflect the variety of more specific, and more developed, theories of legal legitimacy that give an important place to the notion of control over one’s life, as well as its more robust relative, autonomy. 54 For example, this account should be
(^53) Many legal positivists have rejected the idea that law has a point or purpose, or at least any purpose more substantive than merely guiding conduct. Engaging in the debate between legal positivists and natural lawyers is beyond the scope of this paper, but suffice it to say that in recent years well-respected positivists have conceded that it makes philosophical sense to inquire into law’s purpose. For example, Leslie Green writes that “evaluative argument is... central to the philosophy of law more generally. No legal philosopher can be only a legal positivist” Leslie Green, “Legal Positivism,” http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/.. 54 Immanuel Kant works out such a view in the Rechtslehre of the Metaphysics of Morals. Rather surprisingly, H.L.A. Hart adopts this view of the point of law in his later work: “whatever other purposes laws may serve, they must, to be acceptable to any rational person, enable men to live and organize their lives for the more efficient pursuit of their aims” H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983), 113.. While John Finnis sees the ultimate purpose of law as something much more substantive, he often states one of the purposes of law is to enable people to pursue their aims in an efficient manner; see for example John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980), 268-9.. Dworkin claims that legality is the point of law Ronald Dworkin, Justice in Robes (Cambridge, MA: Belknap, 2006), 169-71.; but one of the reasons
able to incorporate a Nozickian libertarianism that interprets control as sovereignty over one’s personal moral sphere, as well as a Rawlsian egalitarianism that understands control as a positive capacity to accomplish one’s ends regardless of one’s draw in the natural lottery. It should also be noted that the concept of control is itself quite general, and more specific conceptions of control will feature in different domains of the legal system (criminal law, constitutional law, administrative law, and so on). Finally, some of these domains will have other conditions for legitimacy. For example, it seems right to say that the criminal law needs to have fair procedures in order to be legitimate. So the requirement to promote control should be understood as stating a necessary but not sufficient criterion for legal legitimacy. We can take a step back on the path of the argument for irrevocability by noting that depriving innocent people of control over their lives undermines the goods that legitimate legal institutions are supposed to promote. And insofar as the unwarranted deprivation of control undermines the goods that law is supposed to promote, there is a kind of institutional irrationality in wrongly imprisoning or wrongly executing people, an irrationality that renders the punishment illegitimate so long as it persists.^55 So if legal institutions are to exercise legitimate coercion, they must return control to the wrongly punished person. It is due to this point about legitimacy that a satisfactory conception of revocation includes the requirement of returning control: setting things aright means undoing an illegitimate punishment by returning control to the wrongly punished person. Again, the connection between the concept of revocation and the concept of legitimacy is that revocation is given content both from basic moral principles and from basic principles of legal legitimacy. Since one of the basic requirements of legal legitimacy is that states promote citizens’ control over their lives, and since control is abrogated in wrongful punishment, revocation requires the return of that control. Now, it is obvious that while the state can return control to the wrongly imprisoned, it cannot return control to the wrongfully executed, at least until technological advances enable us to raise the dead. It is this point that underlies my irrevocability argument. Even if we admit, arguendo , that the wrongfully executed person can be compensated, he cannot be given back
why legality is important is that it enables legal subjects to plan their lives around law’s commands. For Rawls, coordination and efficiency are two of the social problems to which law is an answer John Rawls, A Theory of Justice , Revised Edition ed. (Cambridge: Harvard University Press, 1999), 5.; furthermore, primary social goods are those goods that enable people to have control over their lives Rawls, A Theory of Justice , 54.; finally, Rawls’ main problem with social inequality is that it imposes undeserved hindrances on people’s ability to live their life as they see fit. 55 The determination of legitimacy gets more complicated when legal officials are unaware that a particular punishment has been wrongfully applied. An answer to the question would depend in part on strength of the state’s procedural safeguards, as well as appellate courts’ enforcement of those safeguards. The stronger the safeguards, the less the wrongful punishment would seem to undermine the law’s legitimacy.
