A Retributivist Argument Against Capital ... - Stephan Kinsella

that people such as McCleskey are treated unjustly when they are executed. Ernest van denHaag, for example, argues that discrimination in the sentencing process may be wrong, but it isnot unjust to those who end up being punished, for these are people who deserve to die.'' Desert,according to this view, is an individual matter, and since punishment is inflicted on individuals, notracial groups, the only morally relevant question is which individuals deserve to be punished. Andonce we know who deserves to be punished, any maldishibution of punishments does not renderthese particular punishments unjust. So if, as the Baldus study suggests, the capital sentencingprocess is b i d so that killers of whites are more likely to be executed than killers of blacks, thenthe real victims of injustice are the black victims of murder, since their lives are not valued ashighly as those of white victims. The solution to this problem is not to stop executing those whoare currently being executed, but to pursue more vigorously those who are escaping justi-ekillers of blacks. But since the guilt of any particular murderer remains dected by biis in thesentencing proceu there is no reason to think those who are sentenced to die should not get whatthey deserve. Van den Haag even goes so hr as to say that if punishments were diniuted bylottery among the deserving, this still wouldn't make any particular punishment unjust."Van den Haag's reliance on the concept of individual desert gives his argument a strongunaffected by howothers are treated, there still seems to be something wrong with a stem t doles out U ~ . Ipunishments in a manner that is at best arbitrary and at worst rac' ndeed, this was the mainreason why the Supreme Court struck down Georgia's death penalty law in Fwman v. Georgia,which in effect abolished the death pen* in the United States. In that case, the Court ruled thatthe fact that death sentences were being handed down in an arbitrary manner rendered thesepunishments "cruel and unusual," and thus in violation of the Eighth and Fourteenth Amendments.In his concurring opinion, Justice Potter Stewart compared receiving the death sentence undercurrent law to being hit by lightning, arguing that "the Elghth and Fourteenth Amendments cannottolerate the inflicting of a sentence of death under legal systems that permit this unique penalty tobe so wantonly and so fteakishly imposed."13 But if van den Haag is correct, then arbitrarymethods of distributing punishments among those who deserve them are not unjust to thosepeople who are punished. Since they deserve to be punished, and since they receive what theydeserve, it simply makes no sense to say that they have been treated unjustly.In response to van den Haag's argument, Stephen Nathanson has argued that the problem 7with arbitrary sentencing of deserving criminals is that these criminals are punished for - the wrong ,fv$/.;&'I0.wretributivist foundation. But even if we accept that individual desert m J(C+N'11 flreasons.14 TO make this argument clear, Nathanson considers a case in which a highwayp- conhnted with speeders of all types, makes the decision to pursue and h e only thosespeeders who have beards. The question, then, is whether in these circumstances the punishmentsreceived by bearded speeders are just. Nathanson argues that such punishments are unjustbecause the reason behind the punishments is irrelevant to the punishment. The speeders werefined not simply because they were speeding, but because they had beards. And this, Nathansonbelieves, demonstrates that these punishments are unjust, even though those who received themclearly deserved them. He concludes that "[wlhether one is treated justly or not depends on howothers are treated and not solely on what one deserve^."'^Although Nathanson is surely onto something here, as it stands his argument does notovercome van den Haag's response. In cases such as the one Nathanson describes, van den Haagb- :c*

can again appeal to indiidual deserti?order to demonstrate that the punishments are just. Heargues that when a bearded speeder ' pulled over for speeding by the b i d patrolman, the factremains that he deserves to be fined r breaking the law.16 The injustice in such a situation is notthat the bearded speeder was punished, but that clean-shaven speeders were not also hed. Thearbiiarkss of the choice simply does not affect the guilt or the desert of those who receivedpunishments, and thus those punishments are not unjust. Nathanson claims that it would be betterif no one were punished under these circumstances rather than just punishing a capriciouslychosen few. But the problem with this argument is that it does not address what is, h m van denHaag's perspective, the objective of retniutivism: punishing as many of the guilty as possible. Ifthe goal of retributivism is to achieve a moral balance, then any time a deserving wrongdoer ispunished, this works to promote justice. The fact that we could be punishing more wrongdoers,or that some wrongdoers are escaping their punishment, only indicates that we could be doingmore to promote justice, not that those who have received punishments have been treateduniustly. - -This is not to say that van den Haag's position is ultimately correct. For his argumentdoes not take full account of what it means to deserve punishment. When someone deserves aparticular punishment, this does not mean that any ti& this form of harm is inflicted justice hasbeen served. Imagine, for example, that a vicious murderer has been sentenced to death andplaced on death row. He has exhausted all of his appeals, he has gotten his affairs in order, andnow it is just a matter of days before he gets what he deserves-+ lethal injection that will causehis death. Now imagine that the guards at the prison decide that this business of a formal stateexecution is just too costly an affair and that they should do everybody a favor and take care ofthe job themselves. That night, they slip into the murderer's cell and give him a lethal injectionwhile he sleeps. The murderer never feels a thing and is dead within minutes. Has anythingmorally wrong occurred in this situation? The guards have probably violated many laws andprison regulations, and in that sense their action was wrong. But has anything unjust been done to /7J;L-)the murderer? Atk all, he did deserve to die by lethal injection, so what possi le w laint.could he have? In one sense, it seems that he got just what he 0Then again, maybe he didn't. Although the murderer deserved to d~e by lethal injecti n, ltis only by taking a very superficial view of this situation that we can say that what happened tohim is consistent with his just desert. This is because there is a distinction between punishmentand harm simpliciter, and a desert-claim involves more than the brute physical act of inflictingharm. As JeSe Murphy argues, in order for a particular harm to even be punishment threeconditions have to be met: there must be "a system of rules, authorities to apply these rules, andauthorities to enforce sanctions for breaches of these rules."" Now in the case of the murderer,the k t two conditions appear to be satisfied. There is a law against murder that this personviolated, and he was found to be guilty of this offense by legitimate authorities who determinedthat he deserved to die. But Murphy's third condition clearly has not been satisfied in thissituation Those prison guards did not have the authority to punish the murderer, and thereforewhen they injected him with the chemical it simply was not punishment-it was murder. The factthat the man deserved to be executed does not provide any moral support whatsoeverthe guards did. For although he did deserve to be killed by lethal injection, he did notbe killed by the guards. They could never satisfy his desert-claim, since he deservedese ect .p~w3-~t+a

punished by legitimate authorities, not murdered by vigilantes or do-gooders. The retributivistshould thus consider this not an example of a punishment serving to restore a moral balance, butan instance where fUrther injustice has occurred.This connection between moral desert and legitimate authority is crucial for anyretributivist account of punishment, for absent legitimate authority, legitimate punishment isimpossible. Impkit m the desert-claim "X deserves punishment P" is the claim that X deservesthis punishmentfrom a legitimate authority. So ifno one has the legitimate authority to inflictpunishment-K that is, no one has the moral right to punisk-then any harm intlicted against thewrongdoer will not satisfy the desert-claim. The desert-claim only applies to the wrongdoer andthe legitimate authority. When an illegitimate authority harms the wrongdoer, this no moresatisfies the desert-claim than punishing some innocent third party would, since the desert-claimdoes not apply to innocent third parties and illegitimate authorities. Thus, the retriiutivist shouldnot be satisfied whenever a wrongdoer is harmed, for some harms actually increase the netamount of injustice. It is only when a wrongdoer is punished-that is, when the authorities towhom the desert-claim applies cause him to suffer m the appropriate way-that justice is served.Anything else is simply more injustice.Some will object, no doubt, to the argument that the claim "X deserves punishment P"means that X deserves this treatment onlyfrom a legitimate authority. For there are desert-claimsthat do not lead to the conclusion that the person deserves the treatmentfrom anyone, much lessfiom someone with special authority to deliver this treatment. Consider the claims "Albertdeserves praise for his good deeds," and "the painting deserves admiration." In these cases, itdoes not seem to make sense to say that the treatments in question are deserved from anyone.But ifthis is true, then we need to consider whether desert-claims of this type really are claims ofjustice. We have to consider, that is, whether it would be unjust if Albert did not receive praise orthe painting were not admired. Tbk hardly seems plausible. Saying that Albert deserves praise orthe painting deserves admiration is simply a way of saying that it would be a nice thing if Albertwere praised and the painting were admired. But unlike in the case of a retriitive punishment,Albert and the painting are not due these treatments in the sense that it would be unjust ifthetreatments were not provided, and thus these are, at the least, examples of a diierent type ofdesert-claim.There are, however, other types of desert-claims that are claims of justice, but which donot seem consistent with my account of the desert-claim for punishment, such as, for example, theclaim "all human beings deserve respect." In this case, the claim is a claim ofjustice, since ifahuman being is not treated with respect, we can say that an act of injustice has occurred. But thisdoes not seem to lead to the conclusion that this treatment is deserved fiom anyone in particular,nor does it seem to lead to the conclusion that the person who delivers this treatment must havethe authority to do so. Notice, however, that this desert-claim does in fact mean that thetreatment is deserved fiom some other people. When we say that "all human beings deserverespect," what we mean is that this respect is due from all other human beings such that it wouldbe unjust if they did not provide this treatment. The more &cult problem is that in this case itdoes not seem that any special authority is required to provide this treatment (except in the weaksense that everyone presumably has the right and the authority to treat each other with respect),and thus there is nothing in the desert-claim itself that compels the conclusion that satisEjlng a

desert-claim requires the authority to do so.There is, however, a significant diEerence between a desert-claim for punishment andthese other desert-claims, a dierence that is based on the type of treatment bemg provided.Whereas treatment such as respect is something anyone can provide at any time, the kinds ofsuffering that punishment typically involves are such that it is only under certain conditions thatthese forms of suffering are punishment. Killing another human being, for example, can be eithermurder or punishment. How do we determine which it is in a particular case? One way is bylooking to the person who inflicts this ham In order for the particular harm to be punishment, itmust, at the least, be inflicted by someone who has the right to do so in response to wrongdoing. OKIf this person does not have the right to punish the wrongdoer (as in the case of the prisonguards), then the treatment is simply harm, no matter what his reasons for inflicting it. It is theposition of authority-the right-that makes the difference between harm and punishment. Sowhen we say "X deserves punishment P," the concept of punishment itself constrains the claim insuch a way that it can only be satisfied by someone with the moral authority to inflict thissuffering. Since a desert-claim is a moral claim--a claim that a certain form of moral treatmentwill restore a moral balance-any treatment that is not moral in nature simply will not satisfl thisclaim.At one level this argument should be uncontroversial. It amounts to saying that in orderfor a particular punishment to be just, the person or institution that inflicts that punishment musthave the right to punish. To Wute this would be to say that suffering can be just punishment nomatter who inflicts it. This would mean that the claim "X deserves punishment P" could besatisfied even ifthe person who inflicts this suffering on X has no right to do so. But this doesnot make sense. If the treatment is not moral in nature (which will be the case if it is inflictedwithout rieht). - ,. then it obviouslv does not serve iustice and restore the moral balance. Perhavs.following John Locke, we m&t argue that everyone has a natural right to punish, and thus ;hC.desert claim "X deserves vunishment P" could be satisfied by anyone, since we all have an equalright to punish." But notice, fmt, that even this view req-s that we acknowledge that tho&who inflict punishment have the right to dopunish is central to Locke's argument concerning the state ofpunishment P" does mean that the criminal deserves thisright to punish-it just so happens that this is a veryshould remember is that, according to Locke,give up -punishwhen we enter civil society. Once we are in civil society, that is, thedesert-claim no longer applies to everyone; it only applies to the legitimate authority to whom wehave ceded our rights. Thus, even on deserves punishment P".leads to the conclusion that the wrong &om a legitimate authority. 0 r( "':-What may seem more controversialpunishment with the desert-claim itself. Bis only punishment) only when inflictedinevitably led to the conclusion that thedeserves this punishment from A, where A is tpunish. Since the desert-claim will besimpliciter is not a form of moral treatempt to connect this idea%-cept that punishment is just (or sufferinghas the right to do so, then we areserves punishment P" means that Xr instiition) who has the right toral treatment, and since harmthat only punishment-suffering

W C-inflicted a-wil satisfy theWhatthismewsinthecaseden Haag isco-t that the arbitrary means used to detennine who gets punished do not affect the desert ofthose who are punished. But he is incorrect to say that those who are punished arb'iarily are nottreated unjustly. For when we say that speeders deserve to be punished for their crimes, what wemean is that they deserve to be punished by a legitimate authority. But this is not what happened.Any highway patrolman who deliberately targets people with beards, or people without beards, orold people, young people, black people, or white people has violated his mandate and the publictrust. He was hired and sworn to Drosecute the law imoartiallv. but this is not what he is doh. -He is targeting a particular youp &use of his own Grsonai bias. This is something he wasnever authorized to do: such judgments are far beyond the scow of his authority. Beardedspeeders who are fined therefore-do have a legitimate compla&. They may de-e to bepunished, but not by him. Like the murderer who is killed by the prison guards, they deserve tobe punished only by a legitimate authority. Any harm that the prejudiced patrolman idicts onbearded speeders is therefore simply that-hanq and thus it is unjust.Evaluating the justice of punishments, then, involves more than simply determining whodese~es what, as van den Haag would have us believe. It is not enough to know that a murdererdeserves punishment in order to conclude that the harm he receives is just. Such a determinationrequires a broader understanding of desert and justice, and the crucial role institutions play in thisformula.IIIA 111 retributive theory of punishment will thus have to be considered in light of a largerconception of legitimate authority. When a retributivist claim that a state is ma position to intlictjust punishments on moral wrongdoers, implicit in this claim is the belief that this sta&-or at the very least that its criminal justice system is legitimate. If this authority is not i +'y&te, then it cannot satisfy the desert-claims of wrongdoers. But does this mean we can uic(-,~draw no conclusions about any particular punishments without a full-blown theory of statelegitimacy? Perhaps not. For we can identify some practices that, at least ffom a liberalperspective, obviously disq* a state ffom being considered legitimate. One candidate for thistype of diwliiication is disrespect for the rule of law. We do not need to trot out a fdlydeveloped theory of state legitimacy in order to detennine that a government that does not respectthe rule of law is fundamentally inconsistent with the principles of liberal democracy. Perhaps aneven more obvious disqualifying practice is racial discrimination Since one of the fundamentalprinciples of hiralism is that all humau beiis are morally equal regardless of arbitrary featuressuch as race and sex, any state that institutionahd racial discrimination would have to beillegitimate fiom a liberal perspective. There were many ways in which the government of NaziGermany was unjust; but all we would need to know to determine that it was illegitimate was thatit sought to exterminate an ethnic minority.So if racial discrimination is fundamentally inconsistent with the principles of liberaldemocracy, what conclusions can we draw *om the Baldus study? Does this study provideenough evidence to conclude that those people who are beii executed in the United States arebeing treated unjustly? Can we say that because of the bias in the capital sentencing process the+ @-

authorities who are imposing capital sentences are in no position to satisfy the wrongdoers'desert-claims? If this is the case, then the retributivist should be in favor of, at the very least,suspending capital punishment, since any punishments which take place only serve to Merinjustice.Before proceeding any further, we should consider an important question: to what degreedo certain illegitimate practices affect the legitimacy of what is, for the most part, a legitimateinstitution? Thus far, we have only considered the conceptual relationship between moral desertclaimsand the authorities that are in a position to satisfy those claims. When it comes time tostart discussing actual institutions, things become more complicated, for the institution ofgovernment obviously has many levels and many different roles. If, as the Baldus study suggests,the capital sentencing process in Georgia is infected with racial bii, and if racial discrimination isinconsistent with legitimate government, does this mean that the entire state of Georgia isillegitimate, or, by extension, that the entire United States government is illegitimate? This hardlyseems plausible. Certaidy there are governments that engage in so many unjust practices, orwhose leaders are so corrupt, that we could say the entire government is illegitimate.'9 But if anysingle illegitimate practice automatically rendered an entire government illegitimate, then therewould in all likelihood be no legitimate governments, ever. And so, since we cannot concludethat the entire government is illegitimate based on the fact that in this one area its practices areillegitimate, what conclusions can we draw h m evidence like that presented in the Baldus study?Perhaps the least we can say is that a government that aspires to be just should take steps to avoidparticipating in any practices that are unjust-for this government will be illegitimate in theseareas. So if, as Charles Black has argued:' there is simply no way to rid the capital sentencingprocess of the racial bias that comes with discretion, then our government simply ought to stopScting this punishment. If race is always going to play a significant role in the capitalsentencing process, then ow government can never have the moral legitimacy necessary to satisfythese desert-claims, and tkefore its executions will always be iIlegitlmare. The fact that owgovernment is just in general does not provide moral support for any particular unjust practices,nor for any subordinate institutions created to carry out these practices.An alternative solution to this problem would be to eliminate discretion fiom the systemaltogether. If it is impossible to rid the discretionary aspects of the capital sentencing process ofthe influence of racial bias, couldn't the retributivist argue that we should simply do away withdiscretion? One problem with this proposal is that the Court has already rejected it in Woodson v.North Carolina. In that case, the Court held North Carolina's mandatory death penalty-whichwas a post-Furman attempt to eliminate bii fiom the system-to be unconstitutional. TheEighth Amendment, accordmg to Justice Stewart, "requires consideration of the character andrecord of the individual oander and the circumstances of the particular offense as aconstitutionally indiible part of the process of inflicting the penalty of death'"' In hght ofthis ruling, it seems unlikely that eliminating discretion will ever be a viable solution to theproblem of racial bias in the capital sentencing process. But even if some form of discretion werenot constitutionally required, the retributivist should still be wary of any attempt to removeindividualhd consideration from the sentencing process. The idea that all those guilty of, say,6rst degree murder should be treated the same, no matter what the particulars of theircircumstances, is an idea that would be hard to reconcile with any retributivist account of

punishment. Each criminal's desert is a product of his individual circumstances, and thus ignoringthese circwnstances will inevitably lead to some people being treated unjustly. As Jeffiie Murphyargues,to avoid inflicting upon persons more suffering than they deserve, or to avoidpunishing the less responsible, is a simple-indeed obviousdemand ofjustice.Basic demands ofjustice are that like cases be treated alike, that morally relevantdifferences between persons be noticed, and that our treatment of those persons beaffected by those differences. This demand for individuatio- tailoring of ourretributive response to the individual natures of the persons with whom we aredealing-is a part of what we mean by taking persons seriously as persons andthus is a basic demand of justice."It is a simple fact that not all those who are convicted of 6rst degree murder are similarly situated,and so in order to satisfi, the demands of justice, those who are imposing sentences must take intoconsideration the particulars of individual situations.If eliminating discretion is not a viable solution to the problem of racial bias, does this thenlead to the conclusion that we should put a halt to executions? A defender of the capitalsentencing process might argue that we would k t need to take into consideration the importantdifference between a system that affects racial groups unequally and one that deliberatelydiscriminates against a particular group. In Nathanson's example, the highway patrolman wasdeliberately b i d when he made his decisions, and it was because this bias was beyond thescope of his authority tbat his punishments were illegitimate. But what about a system that is notdeliberately bid? In his opinion for the Court in McCleshy, Justice Powell argues that in orderfor the Court to accept an equal protection challenge such as McCleskey's, the defendant wouldhave to prove that there has been purposeful discrimination against him. Although McCleskeywas able to draw upon the Baidus study to show that there was bias in the Georgia system, thisdid not prove that any particular state actors had targeted him for discrimination The only thingthe Baldus study showed was that those who murder whites are more likely to receive the deathpenalty than those who murder blacks, and that blacks in general are slightly more likely toreceive the death penalty than whites. This did not prove that McCleskey himselfwasdiscriminated against, and so the Court rejected his equal protection challenge.While Justice Powell is correct that McCleskey did not provide any evidence to show thathe had been discriminated against, this does not mean that we can conclude that McCleskey'ssentence was just. We do not need to show that the system deliberately discriminated against anyparticular person in order to conclude that it is illegitimate and thus not in a position to inflict justpunishments.23 It is enough to prove that the system is discriminatory in general to conclude thatany punishments it inflicts are unjust. The fact that a discriminatory system may occasionally getthings right, or may treat some people quite fairly, does not mean that this system is legitimate,even in those cases. The legitimacy of an institution is not measured on a case-by-case basis suchthat we can say that it is legitimate with respect to some people but not to others. By that logic,we might have to conclude that the regime in Nazi Gennany was legitimate when it dealt withpeople of Aryan descent, and illegitimate when it dealt with Jews. But this does not make sense.To say that an institution is morally legitimate is to say that its rule is just. And if racialdiscrimination is unjust, then any institution that practices racial discrimination is illegitimate, even

if in the particular case in question racial diitionis not the motive for its actions. Consideragain the patrolman who is biased against bearded speeders. Suppose that at the end of themonth, it becomes clear to him that he is not going to meet his quota for handii out speedingtickets (and assume for this discussion that such a quota is not unjust). He decides to widen thenet for the last few days and pull over anyone he catches speeding. He starts pulling over peoplewho are clean-shaven, but he also catches some more people with beards. Have his actionssomehow become legitimate at the end of the month? Does it matter that in these cases he is notdeliberately targeting people with beards? Certainly not. The fact that this patrolman mayoccasionally act fiom motives that are not d i i o r y in no way makes his authoritylegitimate. Those who are pulled over at the end of the month have just as much right tocomplain as those who were targeted because they have beards, because in both cases they werepunished by an illegitimate authority.Nor do we need conclusive evidence that an institution's policy is deliberately designed todiscriminate in order to conclude that this instiition is illegitimate. Justice Powell argues thatthere is a difference between acting "because of' the effect on a minority group and "in spite of'the effect on that group, and that in order for McCleskey to have an equal protection claim, thestate of Georgia would have to have been dehirately trying to discriminate against blacks when itdevised its death penalty statutes." Although Powell is correct that the evidence in the Baldusstudy, taken alone, is not enough to conclude that the capital sentencing process is illegitimate,this is not the onlv evidence that should be considered. There is also evidence that not so lollg "ago the same institution that is dealing with McCkskey was engaged in widespread, systematic,delibeme racial discrimination. So what we have is statistical evidence that reveals that a policyis having a disparate impact on members of a minority group, and we have good reason to believethat this impact is not simply the result of random factors. The fact that the death penalty statutesare neutral bn their face E &t enough to conclude that the institutions inflicting this punishmentare TXTand impartial. Instead, an institution that was, until recently, clearly illegitimate, shouldhave the burden of proving that it is no longer engaged in racial discrimination when corhontedwith evidence of disparate impact. And if the institution cannot provide an explanation for theracial disparities, as the state of Georgia could not when conknted with the Baldus study, then itshould be presumed illegitimate and thus incapable of satisfying desert-claims.What about the risk that such a presumption of illegitimacy poses to the goal of promotingjustice through retniion? Wouldn't it be better to take a chance that the institution is actuallylegitimate and intlct punishments anyway? Of course, there is always some degree of risk that aninstimion is acting unjust punishments, and the arguments for and against suspendingpunishments will depend on just how high that risk is. The Baldus study suggests that a murdereris 4.3 times more likely to receive the death penalty if his victim is white. Does this evidence,combiied with the history of racial discrimination in Georgia, demonstrate an unacceptable levelof risk? If not, how much evidence would we need to conclude that the risk was unacceptable?There are no clear answers to these questions. The retributivist, however, should keep in mindthat something more is at stake than simply the potential for deserving wrongdoers to escape theirjust punishments. What is also at stake is the potential for deserving wrongdoers to be harmedunjustly by an illegitimate authority. When a criminal is harmed by an illegitimate authority, thisin no way works to restore the moral balance that is the goal of retribution As a result of such an

act, the net amount of injustice has actually increased because the wrongdoer's o m desertclaimremains unsatisfied, and a further unjust act has been committed. Contrast this to asituation in which we determine that the capital sentencing process reflects a racial bias andtherefore is potentially illegitimate. Instead of sentencing wrongdoers to death, we play it safeand sentence them to the next worst ounishment. life in orison Now a retributivist miehtcomplain that a particular wrongdoe; is not being madeio suffer as much as he shoulcand thussome degree of iniustice remains. But what this situation avoids is the risk of c o m o o the ~original injustice Cy killing the wrong doe^?^ Although the moral balance in this situation would beless satisfactory than ifa legitimate authority had executed the wrongdoer, it is not as bad as itwould be if an illegitimate authority had executed hZ6 If the ultimate goal of retribution is topromote justice, then we should take those steps that are most likely to promote this goal whileresulting in the least amount of injustice. And ifthe evidence in the Baldus study demonstrates anunacceptable level of risk, as I believe it does, then retributivists should want to play it safe andnot inflict the death penalty.Fdy, we should consider what effect accepting statistical evidence such as thatpresented in the Baldus study might have on the rest of the criminal justice system. If we canconclude that an institution is illegitimate by appealing to statistical evidence of bias, this raisesthe specter of the entire criminal justice system ming to a halt as a result of racial challenges."The easy answer to this problem is, 'So be it." If it is the case that the entire system is corruptedby racial discrimination, then it is an illegitimate system, and therefore bringing it to a halt mightnot be such a bad thing. But before making such a determination, we would again have toconsider the level of risk. That is, we would have to weigh the risk of unjustly punishingwrongdoers against the risk of the injustice that would result fiom letting wrongdoers gounpunished. Now in the case of capital punishment, the potential for injustice when punishingsomeone is great." Execution is the gravest punishment the state can inflict, and so a mistake inthis area would be a serious injustice. Because this kind of injustice would be so great-becausethe stakes are so high-we should probably be willing to accept evidence of the kind presented inthe Baldus study, even if it fails to prove that there was any individual discrimination. In otherareas of the criminal justice system, however, the potential injustice is not as great, and so perhapswe should demand stronger evidence than that provided in the Baldus study. Perhaps in thoseinstances we would demand the kind of individualized evidence of discrimination that the Courtrequired of McCleskey. I am not arguing that this is necessarily the case, for there certainly willbe disagreement about what is and is not an acceptable level of risk; nor am I arguing that racialdirimination is any less odious in other areas of the criminal law. I simply wish to point out thatthe type of evidence that we accept as posing a threat to the legitimacy of the capital sentencingprocess does not necessarily have to threaten the legitimacy of the entire criminal justice system.We must keep in mind that for the retributivist, letting wrongdoers go unpunished is unjust.Therefore, unless the potential for greater injustice is so great as to be unacceptable, we shouldnot be willing to give wrongdoers the opportunity to escape their just deserts. Thus, withouthaving to fear that accepting statistical evidence in this instance wil necessarily lead to what couldbe the even greater injustice of letting all wrongdoers go unpunished, the retributivist can supportdoing away with the death penalty.

NA simple appeal to individual desert, then, will not save the retriiutivist argument forcapital punishment. Only by employing a constricted understanding of justice and moral desertcould one conclude that executions carried out by a racially biased instiiion satisfy moral desertclaims.The kst concern for the retriiutivist should be to see that justice is done. He insiis thatpunishment be dicted on wrongdoers only because it serves this goal. Therefore ifa particularpunislunent does not serve this go& or worse yet, undermines it, then he should oppose it. Moraldesert thus does not provide the broad, open-ended justification for all punishments that someretriiivists believe, but instead imposes serious restrictions on the conditions under whichwrongdoers may legitimately be punished.A capital sentencing process that is not hir and impartial in its distribution of penalties isunjust; and if it is unjust in this respect, then it cannot legitimately impose capital sentences, evenif those who receive these sentences deserve to die for then crimes. Although the moral desert ofthe wrongdoers remains unaffected by biis in the capital sentencing process, the harms inflictedby an unjust system simply do not satisfy the wrongdoers' desert-claims. There may be othergood reasons for punishing wrongdoers under these conditions, but an appeal to retribution alonewill not save such a system. When a system that is racially biased harms a wrongdoer, not only isit failing to inflict legitimate punishment, but it is also perpetuating further injustice. And sincethis obviously does not serve the cause ofjustice, the retriitivist should not support the dictionof the death penalty under these conditions.Zwould like to thank Jack Crittenden, Richard Dagger, and Jefie Murphy for helpful commentson an earlier draji of this essay.Notes1. Gregg v. Georgia, 428 U. S. 153 (1976); Furman v. Georgia, 408 U. S. 238 (1972).2.Gregg, 428 U. S. at 184 (1976). Justice Stewart went on to argue that "the decision that capitalpunishment may be the appropriate sanction in extreme cases is an expression of the community'sbelief that certain crimes are themselves so grievous an afFtont to humanity that the only adequateresponse may be the penalty of death." In addition, various opinions in the Furman decisiondiscuss the legitimacy of retribution. In his concurring opinion, Justice Stewart argues that

etribution is a legitimate aim of punishment (at 308), while Justice Brennan, also concurring,rejects this goal as improper (at 342). In dint, Justice Burger (Blackmun, Powell, Rehnquist)contends that this aim is legitimate (at 394). For other cases in which retribution is cited as one ofthe "traditional aims of punishment," see W i v. Illinois, 399 U.S. 235 (1970); US v. Brown,381 U.S. 437 (1965); US v. Barnett, 376 U.S. 681 (1964); and Kennedy v. Mendoza-Martinez,372 U.S. 144 (1963).3.Deterrence is the other "traditional aim of punishment" that the Court accepts as legitimate mthe Gregg decision. See Gregg, 428 U. S. at 183.4.McCleskey v. Kemp, 481 U. S. 279 (1987).5.The Baldus study was a statistical study of the capital sentencing process m Georgia. Baldusexamined over 2,000 murder cases that took place in the 1970's. After controlling for 230 nonracialvariables, Baldus concluded that defendants charged with killing whites were 4.3 timesmore likely to receive the death penalty than those charged with killing blacks. The presence of awhite victim was about as strong a predictor of a defendant receiving the death sentence as thepresence of a legitimate aggravating factor such as a prior murder conviction6.Emest van den Haag, 'The Ultimate Punishment: A Defense," Harvard Law Review 99 (1986).7.See Michael Moore, "The Moral Worth of Retriiution," in Punishment and Rehabilitation, ed.Je&e G. Murphy (Belmont: Wadsworth Publishing Co., 1995), pp. 94-96, for a good discussionof some mistaken notions of what retribution entails, including the belief that retribution amountsto a particular measure of punishment, such as an "eye for an eye."8.Herbert Morris, 'Tersons and F'unishment," The Monist 52 (October 1968): 478. Consider alsothe views of Hegel, who argued that the act of punishing "annuls'' the crime that has beencommitted. His argument is that when a person commits a crime, the evil of the crime in somesense continues to exist until the wongdoer has sutfered punishment. See G. W. Hegel,Philosophy of Right, ed. T. M. Knox (Oxford: Oxford University Press, 1967), pp. 69-70. Foran account of retribution that places greater emphasis on the moral character of the offender whendetermining desert, see Moore, "The Moral Worth of Retribution."9.Needless to say, the conclusions of this study are controversial. For the purposes of this essay,I will, following the Court, accept the validity of these results without delving into the intricaciesof statistical analysis. If the Baldus study turned out to be fBtally flawed, this would undercut thespeciiic argument against the capital sentencing process in Georgia; it would not, however, affectthe larger argument about the relationship between desert-claims and legitimate authority, andthus this line of argument would still be worth pursuing.10.van den Haag, "The Ultimate Punishment: A Defense," p. 1663.

12.For this discussion, I will be concerned solely with racial disparities in the capital sentencingprocess, and not with those in the determination of guilt, or the decisions of prosecutors. Anyracial disparities in these other areas would obviously pose a much greater threat to a retniutivistdefense of capital punishment, for such racial b iis could potentially lead to more innocentpeople being prosecuted or convicted.13.Fman v. Georgia, 408 U. S. 238,309 (1972).14.Stephen Nathanson, "Does It Matter If the Death Penalty Is Arbitrarily Administered?"Philosophy and Public Affairs 14 (Spring 1985): 157.16.Emest van den Haag, "Refuting Reiman and Nathanson," Philosophy and Public Affairs 14(Spring 1985): 174-175.17.JeBie G. Murphy, "A Paradox In Locke's Theory of Natural Rights," Dialogue 8 (September1967): 261. For similar arguments, see also Antony Flew, The Justification of Punishment,"Philosophy 29 (October 1954), S. I. Benn and R S. Peters, Social Principles and the DemocraticState (London: Ruskin House, 1959), Chap. 8, and H. L. A. Hart, "Prolegomenon to thePrinciples of Punishment," in Punishment and Responsibility (Oxford: Odord University Press,1968).18.See John Locke, Two Treatises of Government (Cambridge: Cambridge University Press,1960), Book 11, sections 7-13.19.This may seem to be an extravagant claim, particularly since it would mean, for example, thatthe Nazi government lacked the moral authority to arrest and punish petty thieves or issue parkingtickets-but surely the reverse is much more implausible. For this would require us to accept thatthe same people who were sending Jews to the gas chambers somehow retained the moralauthority to punish minor criminals. And why should we believe that? What theory of statelegitimacy could support such a claim? The confusion here arises &om failing to distinguish themoral desert of the wrongdoers hmthe right to punish them. Certainly petty thieves stilldeserved to be punished even while the Nazis were in power; but there is no reason to think thatjust because thi ~azis held the power of government fhey therefore had the right to inflict thesepunishments. To say that an institution has the right to punish is to say that it occupies a specialposition of moral authority that enables it to serve justice by inflicting on kongdoers. Itis to say, that is, that the agents of this institution are distinct &om other people, that they have akind of moral authority that others do not. But while the Nazis were certainly morally distinctfiom other people, it is, to say the least, unlikely that this distinctness conferred upon them anysort of special moral authority.20.See Charles Black, Capital Punishment: The Inevitability of Caprice and Mistake (New York:W. W. Norton & Co., 1981).

21.Woodson v. North Carolina, 428 U. S. 280,304 (1976). See also Roberts v. Louisiana, 428U. S. 325 (1976).22.JeiEe G. Murphy and Jean Hampton, Forgiveness and Mercy (New York: CambridgeUniversity hss, 1988), p. 171.23.Indeed, the Court used similar reasoning in Furman v. Georgfa when it held that systemicarbiiss, not any malice directed at Furman, rendered Georgia's death penalty cruel andunusual. Furman, 408 U. S. at 309 (1972). See also G0dfi.q v. Georgia, 446 U. S. 420,427(1980), California v. Ramos, 463 U. S. 992,999 (1983), and Caldwell v. Mississippi, 472 U. S.320,343 (1985).25.This assumes, of course, that it is only the capital sentencing process which is racially biased,and thus we avoid the evil of discrimination when we give all of those murderers who are deatheligiblethe same, lesser sentence.26.If it turns out that the authority is legitimate, then the wrongdoer has still suffered for hiscrime, just not as much as he should have. How one would measure the relatiie weight of life inprison versus the death penalty is obviously an important question, but I take it for granted thatlife m prison is still a serious penalty and thus goes a long way towards "annulling" thewrongdoer's crime.27.Justice Powell makes a similar argument in McCleskey v. Kemp. He worries that "[ilf arbitraryand ca~ricious DUnkhIUent is the touchstone under the Eith Amendment. such a claimcouldlat leastin theory-be based upon any arbiiary v-ble, such as the defendant's facialcharacteristics, or the physical attractiveness of the defendant or the victim, that some statisticalstudy indicates may be &tial in jury decision-making." This kind of reasoning, if taken to itslogical conclusion, he believes, ''throws into question the principles that underlie our entirec& justice system" McClesky, 481 U. S. at 315-317.28.The Court has recognized this greater potential for injustice, which is reflected m itslongstanding position that "death is dierent." In Woodson the Court held that "[tlhe penaIty ofdeath is qualitatively different fiom a sentence of imprisonment, however long. Death, in itsfinality, d i i more fiom life imprisonment than a 100-year prison term diiers fiom one of only ayear or two. Because of that qualitative diierence, there is a corresponding difference m the needfor reliability m the determination that death is the appropriate punishment m a specific case."Woodson, 428 U. S. at 305.