On the Morality of Executing Child Sex Abusers: Part 1

Several months ago, Florida Governor Ron DeSantis signed a bill reintroducing the death penalty for those who commit sexual battery on a child under the age of 12. Such laws were previously found unconstitutional by the Supreme Court. But even so, it’s worth considering what – if any – moral justification could be given for responding to child sex abuse with the most serious punishment at our disposal.

In order to make sense of the relevant arguments, we first need to consider precisely what punishment is. Whether it’s a fine, a prison sentence, or the death penalty, punishment seems to necessarily involve harming an offender in some way. But this is problematic. Ordinarily, we assume that there’s a strong moral prohibition against harming other people. We need to explain, then, why it’s permissible to treat some people (i.e., those who commit a crime) differently to other people.

One way in which we might do this is by being consequentialist in our reasoning. Consequentialism – as the name suggests – evaluates the morality of our actions based on the consequences they achieve. While there are many different varieties of consequentialism, they all agree that the right thing to do is that which maximises the good. A consequentialist, then, will argue that while punishment does involve harm to the offender, this harm is offset by the greater good it brings about for our society. What is that “good”? Generally, a reduction in future crimes. The central mechanism by which this is done is deterrence. Punishment is intended to deter an offender from reoffending. But this isn’t all. The punishment of an offender also acts as a wider deterrent for other members of society. Having seen the consequences of wrongdoing, those who might have committed a crime will (hopefully) no longer do so.

Taken together, the deterrence of the offender as well as the general population reduces the likelihood of future crimes and their associated harms. The consequentialist argues that this overwhelming good is sufficient to outweigh any harm caused to the offender.

It’s a straightforward approach, and one that many will find intuitive when thinking about why punishment might be justified. But a number of issues arise. For one, there may be cases where punishment doesn’t maximize the good. Consider a case where a crime is committed by a respected member of the community. Suppose that punishing this particular individual will create no deterrent effect and will, in fact, have far-reaching negative consequences in the form of anger and disillusionment across the community. In such a case, it seems that the consequentialist approach will recommend against punishment.

There might also be cases where consequentialism will recommend punishing the innocent. Suppose, for example, that imprisoning one innocent individual will be enough to deter an angry mob that – if left unchecked – will go on to cause widespread injury and destruction across town. In such a case, a consequentialist approach may very well tell us that punishing that person is the right thing to do.

There are ways that the consequentialist might avoid such problems. One solution would be to argue that while particular cases of punishing the innocent or failing to punish the guilty might maximize the good, adopting such practices as a rule would – in the long run – create more harm than good. But there are deeper problems with the very thing that forms the foundation of the consequentialist approach: namely, deterrence. In order for a punishment to deter, it must be something that the potential offender considers when deciding whether or not to commit a crime. But there are many situations in which this won’t be the case. Those who commit a crime of passion will be paying little mind to the potential consequences of their actions – punishment included. The same might also be true of those who are under the influence of certain substances, or who suffer from diminished mental capacity. All of these are examples of cases where the possibility of punishment will fail to provide a potential offender a reason to alter their behavior.

In other cases, increasing the severity of punishment for a crime may in fact encourage the commission of other crimes. Claire Finkelstein provides a helpful example of this, noting how an increase in the severity of the punishment for bicycle theft might incentivize those who would have otherwise stolen a bike to now steal a car instead.

Something similar can occur when the most severe punishment – the death penalty – is used for anything less than murder. If someone commits a crime punishable by death, they now have little discouragement from committing further crimes (since it is impossible for them to receive a greater punishment). This may be particularly relevant where someone has an opportunity to commit an additional crime in order to reduce their chances of being caught for their initial crime. Suppose, for example, that someone commits sexual battery against a minor, and that the only witness to this crime is the victim. If the perpetrator knows that they are already likely to receive the death penalty for the battery alone, they will have little discouragement from committing further offenses. What’s more, if they are able to reduce their chances of being caught by – say – now murdering that victim, it will make sense – at least, from their perspective – to do so.

And there are other ways in which an increase in the severity of punishment might have negative ramifications. Legal experts have expressed their concern that Florida’s new policy may in fact decrease the likelihood of incidents of sexual battery on minors being reported. This is due to the fact that most cases of child sex abuse are committed by family members. The fact that such incidents might be punished by death may cause families to be more reluctant in reporting such wrongdoing to the authorities.

Increasing the penalty for a serious crime might feel like the right thing to do. In many cases, it’s our society’s attempt to convey our utter disapproval of an abhorrent act. We must be wary, however, of the nuanced effects these severe punishments might actually have on the commission of crimes. In many cases they will simply fail to deter, while in others they may in fact encourage the commission of additional crimes. In yet other cases, a severe punishment might reduce the likelihood of crimes being reported in the first place – thus allowing the perpetrators to continue to offend.

For this reason, it is difficult to justify Florida’s new law on purely consequentialist grounds. But is there, perhaps, another approach that might provide justification? While consequentialism looks forward to the consequences of our actions, we could instead look backwards to certain facts about the past. This is precisely what the theory of retributivism does – and next time, I will consider whether this approach might provide better support for executing child sex abusers.