The Irrevocability of Capital Punishment

One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no other sufficiently similar penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution, and the harm or loss that it causes, is irrevocable. If it is true that sufficiently similar penalties to execution exist, it follows that states should abolish capital punishment. Those who press this argument usually assume that a lengthy period of incarceration is sufficiently similar to execution to make the argument go through. In its strongest and simplest form, the irrevocability argument is a conceptual one. It holds that the death penalty is necessarily irrevocable, not just that it is often irrevocable. One could construct a rather complicated abolitionist argument based on the rarity of revocability—for example, something along the lines of “even one instance of an irrevocable punishment is morally repugnant enough to prohibit the punishment”—or an argument that cites the rarity of revocability as one reason among others to abolish capital punishment. This means that if the conceptual irrevocability argument fails, the abolitionist need not give up on irrevocability altogether. However, if it were granted that that the death penalty is sometimes, even if very rarely, revocable, the abolitionist would have a much more difficult row to hoe. She would have to explain why we should not affirm retentionist policies that would restrict the death penalty to those types of cases in which it is revocable. Moreover, a modified irrevocability argument would lack much of the rhetorical bite of the conceptual versions. If it is granted that the death penalty is sometimes revocable, then courts would have to decide on an individual basis whether the case at hand is one that falls within the ambit of revocability. And friends of the death penalty would find ways to argue in the affirmative in every instance. So there are very good reasons for the abolitionist to want the stronger argument to succeed. If the strong irrevocability argument is to work, it must show not only that execution is in principle irrevocable, but also that incarceration is in principle revocable. If incarceration were irrevocable, the alternative to execution would also be prohibited, and the abolitionist argument would face an extremely high burden. It would have to show that the irrevocability of execution is a sufficient