Resurrection from a death sentence: why capital sentences should be commuted upon the occasion of an authentic ethical transformation.

• Author: Robbins, B. Douglas

INTRODUCTION

The stalwart second chance is an American institution within which we embed visions of our best future-selves. Americans believe they can and should strive further,(1) that failures of the fathers need not be indelible, and that each of us, at any time, can change and become better than we were before.(2) We believe in redemption.(3) Our economic and social institutions reward it.(4) But ours is also a nation invested in the philosophy of personal responsibility. The criminal law, for example, is an expression of our taking seriously the choices that individuals make, even if those choices are bad ones, based on ill-founded knowledge or derived from questionable thought processes. Between these two values--the possibility of a second chance and the demands of taking the first-time-around choice seriously--is typically strung an enormous tension.(5) This tension is especially acute in the application of capital punishment. Here we must ask ourselves: are there occasions when justice is best served by weighing the value of personal responsibility against the vying value of human transformation and, as a result, commuting death sentences where desert is blunted by repentance? Or, at least at first, that seems like the right question to ask. But the ostensible tension between the first and second chance may turn out, in special cases, to be largely overestimated. Another way to look at the second chance is not as violative of the notions of personal accountability, but rather, when properly taken advantage of, as allowing for a deep acknowledgment of one's failures and an even deeper expression of personal responsibility for one's bad acts through the endeavor of making wrongs right.

The broadest possible articulation of this sentiment would seek to downgrade all corporal punishment(6) where the wrongdoer has transformed his(7) character, regardless of his crime. But, for reasons more clearly laid out below, this is not my argument.(8) The focus here is exclusively on capital sentencing, as affected by its justifying agent, the theory of retributive justice. If character transformation is to effectuate a downward departure in death sentencing it must do so within the context of a theory of punishment that recognizes such a transformation and understands its meaning. Moreover, any honest attempt to dejustify the death penalty--not in general, but in a particular instance--must occur within the context of the theory of punishment that justifies the penalty to begin with. Fortunately, these two elements, recognizing character analysis and dejustifying capital punishment, coalesce in a single background theory: retributivism.(9) Retributivism, and specifically character retributivism, unlike other theories of punishment, must necessarily recognize the positive effects of an ethical transformation. And the death penalty is unique among criminal penalties in that it most clearly finds its justification, presuming it can be found anywhere, within a retributive scheme.(10) American values stand in opposition to the categorical denial of redemption,(11) and the broader claim that transformation can downgrade almost any sentence, capital or not, is defensible, but by narrowing the focus to capital sentences, the argument can be made more clearly and much more persuasively.

The structure of this Comment is as follows. Part I erects a skeletal review of retributive justice in general and a defense of character retributivism specifically. It is the theory within which the Supreme Court and the public have embedded justifications for capital punishment and the only theory that sufficiently accords our intuitions with the law. Part II defines and explains the agents of change. Guilt, remorse, and penance (the "trilogy") are important emotional and normative mechanisms through which desert is either exhausted or bartered away and through which wrongdoers alter their central character. Part III is the heart of the argument: the Transformation Thesis argues for the dejustification of the death penalty under conditions when the trilogy changes the prisoner's character from empty and hollow to compassionate and empathic. Part IV argues for a legal application of the Transformation Thesis. Under the Eighth Amendment's proportionality doctrine, the transformed wrongdoer may have a controversial and untested constitutional right to habeas corpus relief. If not, an administrative solution is proposed to guarantee that only those deserving of capital punishment would, in fact, receive it.

It should be made clear up front what this Comment is not about. It is not about mercy. Alwynne Smart observes that there are two conceptions of mercy.(12) The first way to think about mercy is as a pressure release valve that helps to "avoid an unduly harsh penalty," in other words, "to avoid an injustice."(13) This notion of mercy has been rightfully criticized as no mercy at all.(14) Doing justice does not mercy make. The second way to think about mercy is as the benevolent enforcement of "less than the deserved punishment."(15) This is more likely what we mean by mercy, and it is a notion not addressed here.(16) This Comment does not argue for giving a wrongdoer anything except what he deserves. In discussing our response to remorse and ethical transformation, it should become clear why we have a duty under retributive justice, not soft-hearted, ungrounded absolution, to mitigate a sentence of death under certain special circumstances. A preliminary review of retributive justice will help us to better understand the terms of the debate and provide grounding for the Transformation Thesis.

1. RETRIBUTIVE JUSTICE

   1. Moorean Theory and Negative Retributivism

      Retributive justice is the theory that offenders should be punished "because and only because" they deserve punishment.(17) The "correct" amount of punishment is that amount commensurate or "equal" to the "moral seriousness of the offense."(18) Punishing wrongdoers may have certain side effects, such as provoking or deterring other criminal acts, but for the retributivist these effects are reasons for neither abstaining from nor applying punishment.(19) Punishing those who deserve it is an intrinsic good, a good in and of itself.(20)

      Michael Moore helps to put a finer point on retributive theory by delineating what it is not.(21) First, retributivism does not necessarily commit itself to lex talionis, or punishment meted out under the principle of requiring the blinding of those who wrongfully blind others.(22) Neither does retributive justice necessarily mandate capital sentences: "It is quite possible," argues Moore, "to be a retributivist and to be against both the death penalty and lex talionis."(23) Why? Because to say that some punishment is deserved does not establish what kind of punishment is appropriate.

      Second, Moore explains that retributivism is not the view that punishment is justified where it quenches victims' vengeful impulses, suppresses vigilantism, or otherwise satisfies the preferences of citizens at large.(24) The retributivist does not mind these kinds of socially useful side effects leeching from desert-based punishment, but they cannot be original justifications.(25) Nor is retributivism to be "confused with Ia] denunciatory theor[y]" that justifies punishment "by the good consequences it achieves--either ... psychological satisfactions, ... the prevention of private violence, or the prevention of future crimes through the educational benefits of such denunciation."(26)

      Third, retributive justice does not dictate the shape of formal justice, or the principle of "treating ... like cases alike."(27) Just because I am to be punished according to my desert, it does not follow that I should also be punished in a way and to the extent others in my predicament were punished in the past. Others like me may have accidentally been punished too lightly, or too harshly, in which case my punishment, were it to follow theirs, would clash with my desert.(28) "Equality," argues a noted death penalty theorist, "seems morally less important than justice.... Justice requires that as many of the guilty as possible be punished, regardless of whether others have avoided punishment."(29)

      Last, unlike Moore,(30) I will adopt a negative retributive theory:(31) the guilty and only the guilty should be punished.(32) Negative retributivism is a fuller account of punishment than Moore's alone, because it tells us how to treat not only the guilty, but the innocent as well.

      Retributivism has been criticized as a notion too broad to be meaningful. Of course we should punish those who deserve punishment, but how do we know who deserves what? Without an explanation of desert, retributivism begins to resemble a mere tautology.

      A death-penalty-focused desert analysis will often display at least five broad characteristics. First, desert presumes a moral universe in which individuals have a genuine opportunity to choose for themselves various courses of action(33) and consequently reap the benefits or detriments of that choice.(34) Second, as Moore explains, culpable wrongdoing powers desert.(35) Wrongdoing has a physical,(36) as well as a mental, component.(37) One must have done the wrong in a particular state of mind.(38) Third, desert for a retributivist is an objective notion.(39) No normative authority inheres in mere subjective claims that we can and should punish wrongdoers or that wrongdoers are required to submit to punishment simply because the majority wills it.(40) The fourth is a related point, namely, desert has qualities of a right.(41) The state has a right to punish those who deserve punishment and, conversely, those who deserve punishment are obligated to submit.(42) Fifth, punishment is proportional to desert, and desert is proportional to the severity of the wrong committed.(43) The more evil the act, the more intense the desert. The more intense the desert, the...