Retribution

Another argument in favor of the death penalty is based on the value of retribution. Here the idea is that the evil of a crime can be counterbalanced or canceled out by an appropriate punishment, and that in the case of the most serious crime, death can be the appropriate punishment because it is deserved. Appropriateness should be understood against the background of the thought that penal justice requires what Immanuel Kant called an "equality of crime and punishment." His examples show that he meant an act of punishment not identical to the crime but proportionate to its severity; Kant held that death was uniquely appropriate to the crime of murder. John Stuart Mill, in a famous speech in favor of capital punishment delivered in the British House of Commons in 1868, argued that only those guilty of aggravated murder—defined as brutal murder in the absence of all excusing conditions—deserved to be executed. Mill called the punishment "appropriate" to the crime and argued that it had a deterrent effect. He meant "appropriate" in view of the severity of the crime.

Retribution should not be confused with revenge. It is generally considered revenge, not retribution, when there is love or sympathy for the one who has suffered an injury; retribution requires a response even to injuries of people no one cares about. Its impersonality makes the injuries of the friendless have as much weight as the injuries of the popular. Again, revenge is still revenge when the retaliation is utterly out of proportion to the original injury, but the retributivist lex talionis—an eye for an eye—limits what can be done in return.

One question raised by the retributivist defense of capital punishment is how a punishment can counterbalance or cancel out an evil act. Retributivists sometimes refer in this connection to the ideal case in which the offender willingly undergoes a punishment as a sign of remorse and of wishing to be restored to a community from which he or she has been excluded due to a criminal act (Duff). In that case the punishment is supposed to counterbalance the crime. But it is unnecessary for retributivism to be committed to the idea that a punishment cancels out an offense. One can appeal instead, as Kant did, to a punishment's fitting an offense—being proportional in quality to the quality of the offense—and one can justify the imposition of punishment by reference to the following three considerations: (1) laws have to promise punishment if people who are not wholly rational and who are subject to strong impulses and temptations are to obey the laws, and promises must be kept; (2) offenders who are convicted of breaking laws in a just society can be understood to have been party to a social contract designed to protect people's freedom; and (3) threats of punishment in a just society are intended to prevent encroachments on freedom.

This is not a justification of capital punishment, until one specifies a crime that capital punishment uncontroversially fits. Murder is not always the right choice, since such factors as provocation, the numbers of people who die, and the quality of the intention can make some murders much more serious than others; while crimes other than murder— crimes in which, despite the criminal's best efforts, the victim survives—can be as bad as or worse than those in which death occurs. Aggravated murder is, as Mill maintained, a more plausible candidate for capital crime than is plain murder. But execution even for aggravated murder has something to be said against it: the danger of executing the innocent in error, and the suspicion—which goes to the heart of retributivism—that it is bad for pain or unpleasantness to be visited even on wrongdoers.

TOM SORELL (1 995) BIBLIOGRAPHY REVISED

SEE ALSO: Conscience, Rights of; Human Rights; Justice; Medicine, Profession of; Nursing, Profession of; Prisoners, Healthcare Issues of; Prisoners as Research Subjects; Profession and Professional Ethics; Race and Racism; Warfare: Medicine and War; Women as Health Professionals

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