Retribution: They Deserve It!

Retribution:

The most common basis for support of the death penalty is retribution. There are two formulations of the retribution case: 1) the punishment fits the crime and 2) the criminal deserves the punishment. A 2003 poll reported that 37% of death penalty supporters endorse the first and 13% cite the second. [Presumably, this case is based on the assumption that the system can actually identify who deserves it with an acceptable degree of legal and social certainty, a proposition under siege as the list of Death Row exonerations grows. New Mexico Governor Bill Richardson said he supports the death penalty and that some people deserve it but since he can’t be sure who they are, he signed a bill abolishing it in 2009.]

Since the resumption of capital punishment in 1976, 1170 people have been executed. Are we to believe this is the entire universe of those ‘who deserved it’?

That not all who deserve it get it supports an unfavorable inference that the selection process is driven by something other than high principles of retributive justice.

What’s fair in theory may be foul in practice.

Whether the reason for selective application of capital punishment is an accident of geography or a studied application of the fine art of plea-bargaining or jury nullification or a sad fortuity of mitigating factors present in the background of one shooter but not the other, the result is the same: application of retributive justice is capricious, governed by the same laws that govern where lightening will strike, who it will hit and who, if anyone, it will kill.

This is bad constitutional law and worse public policy.