Caution about Character Ideals and Capital Punishment: A Reply to Sorell

Tom Sorell's essay raises the fresh issue of how the criminal should behave were she now to behave as well as possible given that she has already committed a terrible crime. (1) Sorell argues that the "ideally responsible agent" who has engaged in criminal behavior would take responsibility by "admitting to the crime before a relevant public," "admitting to it promptly," and "submitting to the response of the relevant public." (2) In a just (but not necessarily perfectly fair) state, the "ideal of responsible agency ... justifies nothing less than cooperation with the prosecuting authorities," "confession," and "willing submission to proportionate punishment." (3) Sorell submits that this ideal has consequences for how we should think about the death penalty. On its own, he concedes, the ideal of the just state requires that we convict and execute only the guilty (if anyone). This ideal, taken alone, would recommend the death penalty's abolition, given its finality and the concerns that imperfect enforcement techniques may result in the conviction and execution of the innocent. However, Sorell contends that his ideal of responsible agency weighs against this risk-aversion argument. So long as a state enacts and implements serious measures to administer justice fairly, the ideal of responsibility may justify the application of the death penalty in real-life circumstances even in cases in which the risk of error remains. (4) I contest Sorell's claim that this ideal, assuming its plausibility, should influence positively our assessment of the justice of the death penalty. I also question the content of this ideal and raise some worries about Sorell's claim that the ideally responsible agent is one who would confess, confess promptly, and submit willingly to prosecution. To begin, I remain uncertain about the structure of the argument that Sorell deploys. In particular, I am confused about how the ideal of responsible agency weighs against the risk-aversion argument whose power he acknowledges. Perhaps Sorell means something as weak as the following: the argument for risk-aversion focuses on the possibility of unwittingly executing the innocent. The guilty who confess their guilt could, justifiably, be executed despite this argument even if this argument were to rule out executing those who consistently maintain their innocence. He may be suggesting that the implications of the risk-aversion argument are narrower in scope than abolitionists might suggest and that the risk-aversion argument may not merit a comprehensive condemnation of the death penalty. But at many points in the text Sorell appears to have a stronger position in mind--namely, that the importance of the guilty's taking responsibility for their crimes and submitting to the appropriate penalty may outweigh the risk that innocent people will be executed. So, in some circumstances, the death penalty may be justly imposed even on those who maintain their innocence and the death penalty may be a part of a just legal system even if the risk of executing the innocent has not been fully eliminated. (5) I doubt that the ideal of responsible agency that Sorell describes could accomplish any of these ends, or even make a healthy contribution to them. That is, I doubt that it could provide any independent argument for the death penalty even within a state that otherwise achieved attainable standards of fairness--one that respected human rights, operated under a system of fair administration of law, and employed generally reliable methods of evidence collection and presentation. With respect to the weak argument, executing only those who confess would still not eliminate what should be substantial concerns about false confessions. (6) Even if allegations of false confessions are investigated, as Sorell advocates, any real system of implementation, especially one that attempts to handle claims expeditiously, will have imperfections. The risk of executing the h-mocent would be only reduced, not eliminated. …