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Brooks on Retribution & Capital Punishment

By Lawrence Solum

Thom Brooks (Newcastle University - Newcastle Law School) has posted Retribution and Capital Punishment (forthcoming in Mark D. White (ed.), Retributivism: Essays on Theory and Practice, Oxford University Press, 2010) on SSRN. Here is the abstract:

Should retributivists reject capital punishment? It is easy to see how those holding different theories of punishment might oppose it. For example, a deterrence proponent could argue that capital punishment lacks a deterrent effect and, thus, it is unjustified. This seems a far more difficult task for a retributivist.

I will argue that retributivists should reject capital punishment for murderers. My argument will accept several concessions. First, I accept that capital punishment may be proportionate to the crime of murder. Thus, my claim is not that capital punishment should be rejected because it is disproportionate to murder. Secondly, I accept that capital punishment need not be cruel nor unusual punishment. This is an area of wide disagreement, but I do not wish to be distracted by these debates here. Note that I am not defending any particular method of execution. I simply assume that a method may be satisfactory. Thirdly, I also accept that capital punishment is not barbaric nor uncivilized. Some philosophers, such as Kant, rejected punishments for some crimes on the grounds that doing so might itself be a crime against humanity. This also an area of wide disagreement I wish to avoid. In summary, these three concessions are accepted up front purely for the sake of argument. My claim is that retributivists should reject capital punishments for murderers even if they believed it proportionate for murderers, it was not cruel nor unusual to impose capital punishment on murderers, and capital punishment was not barbaric nor uncivilized.

Highly recommended.

Full post as published by Legal Theory Blog on August 26, 2010 (boomark / email).