Capital punishment might satisfy retributivist instincts. But it’s still unjust and should be abolished.

Civil rights groups such as LatinoJustice and Witness to Innocence have filed a petition for the Supreme Court of California to issue a writ of mandate ruling that the death penalty is unconstitutional. Particularly, that the death penalty violates the right to equal protection under the law on the grounds that Blacks and Latinos are significantly more likely to receive the death penalty. 

Among their arguments, the petitioners claim that the death penalty does not deter crime and that instead, “the only purpose the death penalty serves is retribution.” This is presumed to be an inadequate justification for the death penalty. 

Criminal justice reform advocates sometimes claim that the proper object of the criminal justice system is to reform criminals and deter crime. They claim that the justice system shouldn’t be about vengeance against the convicted. Even if it is about giving a criminal their just desserts, is this really supposed to be a bad thing? 

Many of us already have retributivist attitudes. We think that it’s a good thing if a wrongdoer is given a punishment that is at least proportional to their crime. This is true even if there is no additional social good, such as crime deterrence, that would be accomplished apart from just giving that individual what they deserve. We think that retribution is so important that we may even be willing to sacrifice whatever social good criminals may provide by being reformed, for the sake of justice for the victims.

There is something that appears morally righteous about a serial killer who robbed innocent people of their consciousness and sentenced their families to a life without them, that they also be stripped of life.

The problem with the death penalty is not that it may be about vengeance – vengeance may be an entirely sound basis on which to justify the death penalty in principle. The problem is in our inability as a society to implement it without producing too many injustices. 

In cases where the court is considering the death penalty, it’s good to keep in mind exactly what is at stake. Determining that someone should be put to death means that we have decided that they have committed such great harms that they no longer deserve to exist. They deserve to either meet their maker or to fade into the blackest void of nothingness.

The greater the harm a court imposes, the higher our confidence must be that we did not convict an innocent person. This is reflected in how the standard of proof is higher in criminal courts than they are in civil courts. In criminal law, guilt must be proven beyond a reasonable doubt whereas in civil trials, the standard is a preponderance of evidence. 

The reasoning here is clear: criminal courts may rob someone of their freedom whereas a civil court may only impose financial penalties and so the standard must increase with the severity of the punishment.

Death is the worst penalty that our courts can impose. Yet since the 1970s, 197 inmates on death row have been exonerated and that’s out of a population of a few thousand. We can also be sure that there are many more innocent people on death row who have not been so lucky. 

According to research published by the National Academy of Sciences, roughly 4.1% of death row inmates would be found innocent if they remained under sentence of death indefinitely. If this figure is even somewhat accurate, it presents a moral dilemma. Are we willing to preserve the most severe form of punishment even though we know for a fact that we will kill completely innocent people while having the alternative of life in prison?

Apart from death row, since 1989, 3,497 inmates have been formally exonerated. Our criminal justice system is simply too unreliable to implement the death penalty while avoiding killing innocent people. 95% of all convictions are a result of plea bargains, many of which happened only because innocent defendants were given the option of either serving a relatively light sentence or possibly spending decades in prison if their trial went to court.

Our moral conundrum isn’t so difficult. Although our retributivist sentiments about the death penalty are entirely understandable, we shouldn’t be so rabid for vengeance that we would preserve an institution that we know will wrongfully execute four out of every hundred. In effect, while the death penalty can be justified in principle, we currently have no way of reliably avoiding that an unacceptable number of innocent people will receive the worst of all punishments. 

Our moral duty to refrain from harming innocent people outweighs whatever moral good comes from killing a wrongdoer over just incarcerating them for life. As such, we have a moral obligation to abolish the death penalty not just in California, but nationwide.