According to general US retributivist justification for punishment (theory which maintains that punishment of a wrongdoer is justified for the reason that s/he deserves something bad to happen to him/her just because s/he has knowingly done wrong), – the death row inmate Vernon Madison (now imprisoned in Alabama) could not suffer punishment as pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment, but Mr. Madison does not know, now, to have done wrong (he is not fully able to understand and want, recently and now). Then…he is now innocent.
The problem is that Madison has knowingly done wrong at the time of his murders (in the past). This is a fact and the statement that a “fact situation is a concise description of all the occurrences and circumstances of a particular case, without any of the consequences under the law”, – can ignore the time course. This possible description of the past as sufficient reason for sentencing Madison can ignore his subsequent illness, but it would remain a missing point in the vague and abstract outline of all circumstances of his murders.
So the fact pattern of his murders is not different today and the retributivist theory about such past would make retributivist be wrong doing a revision of the case (because time course and illness were not contemplated), while our sense of humanity tells us a different opinion…
This is the second way, proposed by Chailm Perelman’s argumentability of any reasonable decision. The “orator” (the appealing lawyer) may achieve an “acceptance or adherence”, through “analogical” associations or quasi-logical arguments (about similarity), of his “audience” (a court) to reality of a new fact pattern: innocence of Madison in the recent past and in the future (the present), employing arguments that establish the “dissimilarity” of real facts of the less recent past and of the present for Madison.
(This approach could have the same empirical value of, for example, those reasonings in geology, where any stratum or layer of ground is “compared” to another and changes the global description or evaluation of the entire ground).
I would call this new philosophical scenario, and his argumentative background, a “historical retributivism”.
THE ARGUMENT: SHORT VERSION
In short the argument against Death penalty is the following:
- If a judgement of death penalty can be revised, according to change of mental health conditions of a death row inmate,
- It must be admitted that to punish an offender with the death penalty, it is necessary ascertaining, continuously, a history, which is never beyond reasonable doubt and never completely rebuilt,
- Then, except in cases of legitimate defense of the State, when it captures the offender in a state of flagrant crime and tries to prevent immediate excess murders of the offender, the value of the person and his personal history is a totality that, not a state, but only a creator, who knows every fold, can judge and punish with death penalty.