Releasing the terminally ill from prison
Last Thursday, the Scottish government released Abdel Baset al-Megrahi, the only person convicted of the 1988 Lockerbie bombing of Pan Am Flight 103, on “compassionate grounds.” El-Megrahi is terminally ill with prostate cancer and has only a few months to live. His release has created an international uproar, especially following the hero’s reception he received upon return to Tripoli. His situation raises an interesting normative question: should the terminally ill (or the very old) be released from prison in order to die at home?
In what turned out to be quite a timely discussion, TPP recently addressed the issue of punishment (here and here). Jake’s post wondered how California should determine which prisoners to release in order to comply with the 9th Circuit Court’s ruling that the state reduce its prison rolls by 40,000 inmates. Jake suggests that understanding the moral justifications for punishment may help us determine for whom continued punishment is least justified. Based on four justifications for punishment – incapacitation, retribution, rehabilitation, deterrence – Jake comes up with three categories of people most morally eligible for release: first-time offenders, the reformed and those whose crimes were non-deterrable.
One possibility that Jake didn’t consider is whether those near the end of their life would be on this least qualified for continued punishment list. The question is really whether the justifications for punishment apply equally well to those near death as they do to those with long lives ahead of them. I briefly touched on this question in a follow-up post to Jake linking to a Slate article on whether someone can be too old for jail. The case of Abdel Baset al-Megrahi gets at this point.
Some justifications for punishment obviously do not apply well to those near death. The threat of years in prison does not deter those with little time left, though the threat of dying in prison may. Rehabilitation can’t justify punishing the very old or terminally ill – they will die before they reform. Though I haven’t searched for a study to back this up, I assume that very old and terminally ill criminals are not likely to commit further crime. Thus, the case for incapacitation in order to lower crime falls apart (this may not be true for religious extremists whose impending natural death may actually make them more likely to commit terrorists acts, though this does not clearly apply to el-Megrahi).
Only retribution remains to justify continued imprisonment of the very old and terminally ill. Of course, this is no small cookie. Retribution is the most established and intuitive justifications for punishment. Ask someone why a criminal should go to jail and you are more likely than not to hear “because they deserve it.”
The question, then, is whether the very old and terminally ill might also deserve something else – say, to die with a modicum of dignity. You may have your own beliefs about which is more important. But if you do not – or if you think these two things are incommensurable – how should you to decide which to favor?
In cases like this, it may be best to error on the side of that which you are certain. What do I mean by this? A belief that everyone deserves to die with dignity is something of which you can be sure (if you hold this belief). A belief that the guilty deserve punishment is something of which you can be sure (again, if you hold this belief). But knowing whether someone is truly guilty or not is rarely something of which you can be certain (it may even be impossible).
The questions surrounding the trial of el-Megrahi are well documented. Many of the British families of those that perished doubt his guilt. This may have weighed into the decision by the Scottish Justice Minister to release el-Megrahi. Faced with two incommensurable moral deserts – one of which he was certain and one which depends on an empirical fact (guilt) which in this case could not be known for sure – he may have determined it best to error on the side of certainty.
-Marc
Related posts:
- Lockerbie continued…
- How young is too young for a life sentence?
- A Prisoner Dilemma
- Is it right to put an accomplice to death?
- Is the homebuyers tax credit immoral?
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