Monday, December 13, 2004

In defense of Retribution:

The four classic rationales for criminal punishment are Restraint, Reformation, Retribution and Deterrence. Some modern criminal legal theorists scoff at the notion of retribution, writing it off as "legalized vengeance." In reality, retribution is every bit as important a theory as the others. (Arguably, reformation is the loser of the bunch, given recidivism rates.)

The proper understanding of retribution is that justice alone demands an individual be punished for committing a certain crime, independent of any other purpose that punishment may foster. Call it vengeance if you will, people deserve to be punished (perhaps with death) for certain transgressions against society.

For instance, let's conduct a thought experiment. Let's imagine a scenario where someone does something really bad, like murders in cold blood. Let's say for some reason, we knew to an absolute certainty that he would not commit such a violent crime again (negating the restrain and reformation rationales) and that no one would find out that he "slipped" through the cracks and didn't get punished (therefore, there would be no anti-deterrent effect). Would it be okay if such a person went free? If you answered no, then you believe in retribution.

Or let's take the case of Ira Einhorn, who recently after years of living it up in France was captured and put in jail for the murder of Holly Maddux. Why was it so important to go after him? Why spend the millions of dollars? Was it because we were concerned that he might murder an innocent Frenchman or woman? That we needed to capture this 60-something-year-old to "reform" him? That if we didn't capture him, *someone* out there would get the message that "I too may be get away with murder just like Ira Einhorn"...but now that we got him that will *change* someone's mind?

Did we really do anything to prevent future murders by getting our hands on Einhorn? Of course not. We went out of our way to get this bastard because he was living the good life abroad and he deserves to rot in a jail or be put to death, regardless of any other independent effect on deterrence, restraint, or reformation.

There is also a converse to retribution: "Due Process" or "natural justice" demands that punishment be limited by the moral desert for the crime committed. Why don't we just execute all drunk drivers? That would 100% effectuate our policies of deterrence, restraint, and reformation of drunk drivers. It's because a drunk driver doesn't justly deserve to be put to death for this act, regardless of the positive effects that certainly would occur. Plain and simple.

Which brings me to the Peterson case and the death penalty. If Peterson did what he was convicted of, then he deserves to be put to death. That's not the same as supporting the death penalty. I'm sort of on the fence on this issue. We have to weight the positives and negatives and there are a lot of both (although I remain a cautious supporter of capital punishment).

The ultimate negative is government wrongfully executing an innocent. To my knowledge, this has never occurred in the modern (or perhaps entire) history of US's death penalty (or at least, there is no proof for it). But regarding why in modern history no innocent has been executed, it's because we execute so few and the few that we do have sat for so many years, going through so many appeals...we have between 15-20 thousand homicides committed each year, and execute only between 50-100 people a other words, it's almost impossible to execute an innocent man in this society because it's almost impossible to execute any given murderer period.

I realize that heroic journalism students were responsible for recently getting a pretty surprisingly high number of innocent people freed from death row. But the point is, these innocents were not put to death. Our system of almost infinitely dotting our "i's" and crossing our "t's" worked to free these innocents. But such a system also makes it impossible to execute all but a nominal number of murderers each year. In other words, we really don't have the death penalty. And we won't have it until we start consistently executing all first degree murderers in this nation within a timely manner after they commit the crime (or under our federalist system, have one or a few states try this out). That might mean somewhere upwards of 1,000 people executed each year. But if we did this, then chances are an innocent person would be put to death. And that, unlike a prison sentence, is an irreversible mistake. Therefore, I'm not sure if I could support it.

So now you see why I'm on the fence. But when one of these bastards gets it, I shed no tears. (My older brother half-jokingly claimed that he wanted to attend the protest/counter-protest gatherings that inevitably occur outside the place of execution whenever one occurs, in a Grim Reaper outfit complete with a scythe. When the media cameras came by he would give his message by swinging the scythe.)

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