Alas, I am not at liberty to reveal what that evidence is, for I gave it to a friend of mine who is writing a book whose impact I do not want to reduce. But the efficacy of a punishment and its justification are not the same, except on a purely utilitarian view of punishment. I have little doubt that the amputation of hands would deter burglars, thieves, and robbers, but I would not advocate it because I think that such a savage retribution would be brutal. Moreover, on a utilitarian argument it would be permissible to punish the innocent if by doing so it produced the desired effect. Punishment must be according to desert as well as effect; therefore, the utilitarian justification of punishment is wrong, or at least very incomplete.

I have little doubt that some men deserve death, but there are also men who deserve much worse than death: men who have done such horrible things (sometimes worse than murder) that no punishment would or could be condign enough to be unjust. But we do not inflict such punishments in order to preserve; therefore, desert cannot by itself justify punishment, either. 

But in my opinion, the decisive argument against the death penalty is that mistakes are made even in the most scrupulous and careful of jurisdictions, whether the penalty be death or any other. And for the state to do to death its own citizens who turn out to have been innocent is not only terribly wrong in itself, it leads to very bad long-term consequences for society as a whole. 

In the case of Herbert Smulls there appears no doubt at all of his guilt. No one, as far as I know, suggests that he did not do what he was accused of having done. Wrongful conviction, meaning innocence of the crime, was never (I think) part of his appeal. Therefore, executing him does not pose the slightest risk of executing the wrong man. 

But this raises a problem. Under our system of justice, all convicted men are supposed to be guilty beyond reasonable doubt. That, indeed, is the legal definition of guilt. To allow Smulls to be executed on the grounds that he was undoubtedly guilty, that is to say really, really guilty, is to imply that there are at least two classes of men found guilty under our law: the undoubtedly guilty, and the less undoubtedly guilty, namely the quite probably, or quite possibly, guilty. But that distinction is precisely what our system is supposed to avoid, even if in practice it cannot altogether be avoided. 

Be this all as it may, the 22-year delay in Small’s execution was inexcusable. If a legal system cannot persuade itself of the correctness of its judgment within a few weeks, how could it do so after 22 years? A judgment that takes 22 years to become indubitable cannot be indubitable. And if it were indubitable earlier, then it would be the utmost cruelty, and a sign of deep brutalization of feeling, to execute a man not immediately but after 22 years. It is, or ought to be, revolting. 

I do not at all sympathize with what Herbert Smulls did. I have no idea, either, what he became in the 22 years between the commission of his crime and his execution. We know that his crime was brutal and without excuse; so, alas, was his execution. 

 



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