Statements specified as "theoretically let the usage of the death penalty, but in practice I do not want it to return to the penal code due to 1) the anticipation of irreparable judicial errors and 2) the reluctance to extend the penal arsenal of the regime" are very frequently based on fundamental categoryial errors.
The punishment – regardless of its circumstantial character, e.g. retributive or restitution – by definition meets the moral function. If it is purely utilitarian – e.g. preventive or "resocialisation" – it ceases to be a punishment, becoming a de facto tool for social engineering. Hence, the "practical" opposition to the application of the main punishment resulting from the anticipation of judicial errors is based on the confusion of moral categories with intellectual categories, while the akin opposition to the strengthening of the repressive possible of the government is based on the confusion of moral categories with political categories.
More specifically, these reservations are purely instrumental or formal, and so do not justify the categorical absence of the main punishment in the penal code. The problem of possible judicial errors can in this context be solved by exacerbating the evidence criteria by requiring them to identify cases in which the applicable judgement can be ruled “overly in doubt” – and, nomen omen, there is no uncertainty that specified cases exist. In this context, the problem of possible lethal political repression can be addressed by decentralising and consensualising the process of issuing sentences, e.g. expanding the number of jurors involved, requiring absolute unanimity or introducing additional warnings on the transparency of their choice and protecting them from intellectual pressure.
In conclusion, the request to avoid these and akin examples of categorical confusion is crucial in that we do not throw the pearls of morality at the pigs of politics and bureaucracy. Avoiding specified hierarchical inversions is essential for the criminal strategy to service justice to any extent, regardless of its inevitably procedural and human weaknesses.
Jakub Bożydar Wiśniewski
