Defeaters and the death penalty

I want to argue that one can at least somewhat reasonably hold this paradoxical thesis:

• The best retributive justice arguments in favor of the death penalty are sound and there are no cases where the death penalty is permissible.

Here is one way in which one could hold the thesis: One could simply think that nobody commits the sorts of crimes that call for the death penalty. For instance, one could hold that nobody commits murder, etc. But it’s pretty hard to be reasonable in thinking that: one would have to deny vast amounts of data. A little less crazily, one could think that the mens rea conditions for the crimes that call for the death penalty are so strict that nobody actually meets them. Perhaps every murderer is innocent by reason of insanity. That’s an improvement over the vast amount of denial that would be involved in saying there are no murders, but it’s still really implausible.

But now notice that the best retributive justice arguments in favor of the death penalty had better not establish that there are crimes such that it is absolutely morally required that one execute the criminal. First, no matter how great the crime, there are circumstances which could morally require us to let the criminal go. If aliens were to come and threaten to destroy all life on earth with the exception of a mass murderer, we would surely have to just leave the mass murderer to divine justice. Second, if the arguments in favor of the death penalty are to be plausible, they had better be compatible with the possibility of clemency.

Thus, the most the best of the arguments can be expected to establish is that there are crimes which generate strong moral reasons of justice to execute the criminal, but the reasons had better be defeasible. One could, however, think that there defeaters occur in all actual cases. Of course, some stories about defeaters are unlikely to be reasonable: one is not likely to reasonably hold that aliens will destroy all of us if we execute someone.

But there could be defeaters that could be more reasonably believed in. Here are some such things that one could believe:

• God commanded us to show a clemency to criminals that in fact precludes the death penalty.

• Criminals being executed are helpless, and killing helpless people—even justly—causes a harm to the killer’s soul that is a defeater for the reasons for the death penalty.

• We are all guilty of offenses that deserve the death penalty—say, mortal sins—and executing someone when one oneself deserves the death penalty is harmful to one’s character in a way that is a defeater for the reasons for the death penalty.

(I myself am open to the possibility that the first of these could actually be the case in New Testament times.)