Three Problems with Contractarian-Consequentialist Ways of Assessing Social Institutions

TLDR

The paper argues that applying a prospective‑participant perspective to criminal law—defining offenses, apprehending suspects, and setting punishments—raises moral concerns, especially when reforms that expand the death penalty and lower evidentiary standards could increase innocent executions. It seeks to examine whether a contractarian‑consequentialist approach justifies accepting a small risk of innocent execution in exchange for substantially reducing other premature death risks.

Abstract

With each of our three criminal-law topics—defining offenses, apprehending suspects, and establishing punishments—we feel, I believe, strong moral resistance to the idea that our practices should be settled by a prospective-participant perspective. This becomes quite clear when we look at how the “reforms” suggested by institutional viewing might combine once we consider all three topics together: imagine a more extensive and swifter use of the death penalty in homicide cases coupled with somewhat lower standards of evidence; or think of backing a strict-liability criminal statute with the death penalty. Of course, such “reforms” would increase the execution of innocents; but, their proponents will tell us, any penal system involves the punishment of some innocents, and, if it provides for the death penalty, the execution of some innocents. Moreover, why is it worse for innocents to be punished than for innocents to suffer an equivalent harm in some other way? Formulated from a prospective-participant perspective: Why not run a small risk of being innocently executed in exchange for reducing, much more significantly, the risk of dying prematurely in other ways?