Arguments from Finality and Arbitrariness

Arguments against the death penalty sometimes emphasize its finality. There are several versions of the argument from finality, some religious, some secular. One religious version has to do with the way the death penalty removes all possibility of repentance or a saving change of heart on the part of the offender (Carpenter). Capital punishment writes off the offender in a way that, for example, imprisonment combined with education or religious instruction does not. It arguably refuses the offender the sort of love that Christianity enjoins, and it presumes to judge once and for all—a prerogative that may belong to God alone.

Secular arguments from finality are almost always combined with considerations about the fallibility of judicial institutions and doubt whether people who are accused of crimes are fully responsible agents. In some views, society contributes to the wrongdoing of criminals (Carpenter), so that they are not fully responsible and should not be punished. This argument shows sympathy for those who are accused of wrongdoing, but because it does not take wrongdoers as full-fledged agents it may not show them as much respect as apparently harsher arguments do. As for fallible judicial institutions, certain factors—such as prejudice against some accused people, and poor legal representation—can produce wrong or arbitrary verdicts and sentences; even conscientious judges and juries can be mistaken. When errors occur and the punishment is not death, something can be done to compensate the victims of miscarriages ofjustice. The compensation may never make up entirely for what is lost, but at least a partial restitution is possible; but where what is lost is the accused person's life, on the other hand, the possibility of compensation is ruled out. This argument is particularly forceful where evidence exists that certain groups (black males in the United States, Tibetans in China) are disproportionately represented among those receiving harsh sentences, including the death sentence (Amnesty International, 1991; Wolfgang and Reidel). In these cases, the possibility of an error with disastrous consequences starts to grow into something like a probability. What is more, the evidence of certain groups being disproportionately represented suggests that the law is not being applied justly. This adds to the argument that the death penalty should not be applied, for it suggests that people are fallible, the background conditions for the existence of justice are not being met, and consequently that some miscarriages of justice result from factors other than honest error.

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