Friday, February 17, 2006

Capital Punishment: Morals and Justice

Since I’ve already discussed abortion (rather extensively, I might add) and war, the last of the biggest three philosophical challenges, in my mind, is capital punishment.

People like to support the death penalty because they believe it deters crime. A simple Google search will quickly dispel this myth.
Others like to say that it provides closure to families of the victims. I’m not sure whether or not that’s true, but I have a hard time thinking that someone will feel a lot better after someone else is killed.

But those rationales are simply practical concerns. People tend to get caught up in the prevention-of-crime rationale. These are perfectly valid goals and, if the death penalty were applied differently, they might be achievable through that means. But, as the great legal scholar Guido Calabresi would observe, there’s a lot more to capital punishment than that. The law tends to try to achieve multiple goals simultaneously, and that’s why it never perfectly achieves any one goal. There are two related rationale for the death penalty, one that we don’t like to talk about and one that few know how to put into words.

More Honest Rationale: Punishment

Punishment is the third major reason for capital punishment that’s cited by average people. As a general matter, it incorporates both of my “more honest rationales.” Critics of capital punishment often say that life in prison is adequate punishment. In my mind, life in prison is worse than death for the perpetrator and less satisfying for society.

Retribution is one of the most powerful reasons to support the death penalty. I think people don’t like to talk about it because it’s often associated with revenge. But they’re not the same thing. Merriam-Webster’s Collegiate Dictionary (Tenth Edition) gives as one definition for revenge “an act or instance of retaliating in order to get even.” This is something that society doesn’t want to admit to, and rightly so. Retribution, on the other hand, is “the dispensing or receiving of reward or punishment esp. in the hereafter.” So retribution has an element of divine moral justice. Which brings me to the other honest rationale for the death penalty: natural justice.

Natural justice is something that courts avoid in their resolution of issues. This is largely because it’s very difficult to set out principled standards and rules to follow. But, at the same time, most people would agree that there is something to the concept. In natural justice, the punishment should fit the crime, almost like poetic justice. For example, rapists should be castrated, thieves should be stripped of their own belongings, and murderers should be put to death.

What separates natural justice from revenge? Revenge is taken by individuals on behalf of themselves or their loved ones. Revenge is primal and chaotic. Natural justice reaches the same result as revenge. But revenge can go too far because of emotional considerations. In revenge, X kills Y’s wife, then Y kills X’s entire extended family (thank you The Punisher). But in natural justice, there is an adjudication to determine whether the accused has actually committed the crime, and the punishment is meted out fairly. Natural justice is action by an ordered society rather than wronged individuals.

I could take the natural justice discussion further, and I may at some point. I could also go through recommendations for how capital punishment should b implemented in a criminal justice system or discuss the Supreme Court’s capital punishment jurisprudence. But for now, we can sum up the argument as such: capital punishment can be supported on punishment grounds, because society demands retribution for heinous crimes on the basis of natural justice.

Capital Punishment and Religion

People like to cite hypocrisy in religion. They find most Protestants’ approval of capital punishment as being at odds with their disapproval of abortion. I imagine both sides are absolutely astonished at the apparent disparity: D thinks it’s okay to kill an innocent baby but wants to save the life of a murdering bastard; R wants to protect tissue at the expense of a woman’s choice and lifestyle but doesn’t have the decency to want to protect a real human being.

The most obvious response to this charge of hypocrisy on the part of Christians is this: the fetus (which is seen as a full-fledged human) has done nothing wrong. The murderer, on the other hand, has forfeited his own life by taking another life.

I found another response to the apparent disparity between the attitudes of the Old and New Testaments in part of a paper I wrote in a class called “Ministry in a Changing World,” a graduation requirement at my undergraduate university, which I took in May of 2003:
[W]e can look . . . to the fifth chapter of Matthew, verses, 38-42.
“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.”
At first glance, this verse only tells us not to resist evil. But put in a historical context, it shows that God wants us to separate church and state.
Before this time, God’s people were also a nation, as Israel. God’s laws were not only a moral code, but also a code of law and order. “Eye for eye” was meant to be the rule of law for the people of Israel, so that they could keep the criminals in check. God’s new people, the Body of Christ, are no longer a nation. They are supposed to be members of all nations. And they will never be the majority. So the gospel of Jesus compels us to love our neighbor and not seek revenge. That is something up to the governments to do.
Finally, what are your thoughts on capital punishment? Is it morally required of a civilized nation? Is it morally acceptable yet practically ludicrous? Do you still think it’s hypocritical to support the death penalty while decrying abortion (or backwards to support abortion while opposing the death penalty)? Or do you agree with me that it is the best way to implement a natural justice and to punish murderers?

As my property professor would say, a "Preview of Coming Attractions":

Next Friday, I hope to tackle the more practical concerns surrounding capital punishment and how it could best be applied.


  1. Well, you consider the arguments for the death penalty without considering the arguments against them. One argument is that the innocent is what the legal system is designed to protect, and it is the greatest miscarriage of justice when an innocent person gets put in jail, let alone gets killed. Even the best legal system in the world will make mistakes, and DNA evidence appears to imply there were many mistakes in the US system. I would not support a system which involved a possibility of putting innocent people to death.

    Assuming that the legal system is perfect, I still would not support the death penalty. I don't particularly believe in natural justice, or the punishment principle at all. I concede it (as in punishment in any form) must exist as a natural deterent to criminals, but believe the main goal of the justice system should be to rehabilitate people so they can perform a useful role in society. In the case that that is not acheivable, we should prevent someone from being a threat to society by imprisoning them for life.

    The problem being for me is that I do not believe in ultimate culpability. Our actions are either deterministic or random- there is no in between, and neither strikes me as a particular sign of free will.

  2. mr k hits the nail on the head. The reason I don't support the death penalty is that though our jury system is the finest in the known universe, it relies on human analysis and conclusions, and is therefore fallible. I don't think a civilized society can kill people as punishment if there is any chance whatsoever that it is mistaken.

    With regard to situations where there is no measurable chance that there is an error -- video of the crime, a full confession, corroborating evidence, for example, it's difficult to advocate against doing the dastardly deed.

    I think the issue is so divisive because there is a simple, attractive, equitable argument in support of capital punishment -- the Golden Rule. Do unto others as you have have them do unto you. If you do the crime, there is a certain equity it seems in the concept of enacting punishment by having that crime done to you. Whether this rises to the level of a principled, reasoned argument is beside the point, as it certainly seems to carry emotional weight.

  3. Mr. K,

    Small little question before I respond to the post. Just a quick little side-note before we get to the argument.

    You say that "I do not believe in...ultimate culpability...Free will"...

    Now, are you determined to disbelieve in Free will or is it a merely random occurance that you disbelieve in Free will. Or, more particularly, who is believing or disbeliving in anything? How can you believe in anything because without free will you can't even do anything, let along believe anything...?

  4. Moise- I don't need free will to believe anything. Not having free will means just that I was always going to believe that.

    Essentially, I have a problem with free will is no-one can define it to satisfy me. If you mean merely our lives are uncontrolled, that is fair enough, and I believe it to be true. However it does not stop us from having a free choice. Given an option at any particular point in time, we will always pick the same choice. If we did not, we would not be us.

  5. Free will concerns aside (a topic for another day perhaps) it seems you guys have jumped ahead to the more practical concerns. You are rightly worried about putting to death a person who didn't do the deed. That's something I will attempt to address next week. But assuming we know we got the right guy, then the death penalty is appropriate. Right?

    I don't think Mr. K would agree with that, but I think Getto would. Correct me if I'm wrong.

    In a perfect justice system (not a perfect world) the punishment would fit the crime and it would get the right guy every time. If you murder, you are put to death (at least in certain instances).

  6. Free will is the primary concern regarding capital punishment. For any rational justification for punishment must also include a justification for punishment in general. Without the general agreement to the proposition that "Free will" exists or mankind has the freedom to make choices, there can be no distinction between a "good" commendable choice and a "bad" or condemnable choice.

    There are two separate concerns regarding the just application of CP. First, is CP an acceptable form of punishment for the most worthy offenders (those who make the “worst” of the “bad” choices) in the abstract? The second concern is may we as a society justly apply CP, even though we, as imperfect beings, cannot apply this form of punishment perfectly?

    It seems as though Kelly would like us to develop the first concern first, which only makes sense. Any argument that CP is applied unjustly only circumvents the proper consideration, that is, is CP acceptable to justice or Justice in the abstract. It is similar to saying (during the 1950’s) that because education in America is applied incorrectly towards African American’s and other races that we should abolish the entire education system. This, of course, is a form of the common analogy “putting the cart before the horse”. So, per Kelly’s instructions, let’s deal with the horse first, before we decide where we may properly place the cart.

    “The Horse” –

    Kant adheres to the “Lex talionis” view of punishment. Similar to the “eye for an eye” determination of the Old Testament. Kant is a retributivist. That is, he believes that the punishment should always “fit” the crime that has been committed. He believes that the only possible way for a just society to stay just, is to rid the society of its highest offenders. For instance, this classic articulation of the retributive justification for punishment:

    But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal. -- Kant

    If we accept retributivist theory for punishment, it seems, we necessarily accept CP as the ultimate form of punishment. However, as Kelly points out, we often treat this seemingly natural inclination for retribution as nothing more than a fateful bloodlust, or revenge. The only obvious difference between the two is that retribution is sanctioned and necessary for the existence of the state whereas revenge stands opposite of goals of society itself. But there is an even more subtle distinction. Revenge has a personal element that is lacking in retribution. Retribution is done for the crime against the criminal without necessarily having a personal function. Revenge is necessarily personal. It is not revenge if it is not done without some sort of connection to the victim of the crime. Revenge also does not necessarily have a limit. One could imagine a person acting out of revenge to exact a proportional punishment against the criminal. Retribution also has limits that are not necessarily present when exacting revenge. For instance, if a criminal kills my son, exactly proportional revenge of killing the murderers son would be unacceptable.

    Utilitarian theory could also be used to justify CP. For utilitarians, there is little account for doing justice. Only the belief that one should do what is best for the whole, regardless of the individual. A utilitarian justifies CP by saying that it deters others from committing the same crime because it may result in the would-be criminals death. It also deters criminals personally by making fairly sure (absent a supernatural haunting) that the criminal will not commit the crime again.

    Utilitarian theory fails because it doesn’t take the actual circumstance into account. It would be just as justifiable to kill one out of 1000 criminals by lot in order to deter crime in general as it would be for the state to take the effort of only killing murderers.

    Now for CP. I used to agree with the retributivist (and Socratic) theory that since your body technically belongs to the state (because without it’s laws your parents would not have had the security and comfort of breeding and thus creating you) they have the inherent right to kill you if you break those laws. They also have the right to send you to war to die to maintain the laws.

    I don’t believe in this any more. I thought about this a lot last semester and came to the belief that there are no rational justifications for capital punishment that do not also allow for torture. I believe that torture is inherently wrong. Therefore, I cannot believe in an idea that allows for the just application of torture. Besides, there is also a common sense “best bet” type argument. If CP is wrong, it’s dead wrong. If CP is just “Ok” to do, than we really do not gain that much by applying it to certain defendants. This is not to say that CP should never be used. Of course, if we catch Bin Laden, we should kill him. But we should not do it as commonplace or even uncommonplace practice in this country. I would ask Kelly to articulate what his justifications for CP are. If they are anything more than personal “beliefs” in the right thing to do under the circumstances, I may look into CP more thoroughly. Perhaps, we can leave CP an option, in order to achieve any deterrent effect, but simply not use it. Similar to my views on abortion, where we keep it legal, but do our damnedest not to ever have it be the best “choice”.

  7. "the fetus (which is seen as a full-fledged human) has done nothing wrong" --

    Well, I would ask, what about original sin?

  8. Original sin is not a concern for government, only for religion and the soul.

    That said, wow. I couldn't have said it better myself. This was probably the best thing you've written that I've ever read.

    I think the retributive element of Kant's view fits my own very well--the eye for the eye, so to speak. But I think there are also other goals for a criminal justice system that could be met if CP is applied rationally, something I will explore this Friday. The most obvious, in my mind, is capital punishment for all those who commit murder while in prison. But like I said, that's for this Friday.

    I think that if you don't reserve the possibility of the death penalty for certain types of crimes, then you are under-punishing those crimes. Also, in the instance of a prisoner, when they are already imprisoned for life then what incentive do they have to behave themselves? Solitary confinement?

    There is definitely a concern for inequity of punishment. Take this example. Murderer X killed Victim A because the victim owed him money and wasn't paying. X will be put in prison for life. Murderer Y, in contrast, killed seven different women in their early 20's that all fit a certain description. If Y only gets life in prison, then where is the recognition that Y's crimes are worse than X's? Of course the immediately apparent counter-argument is that two murderers who get the death penalty do not have anything to distinguish between the severities of their crimes. But I will also address that concern to some extent on Friday.

  9. In response to you inquiry, since you asked, I must admit a certain level of discomfort with the death penalty, even in situations where there is no chance for error. That said, because I have yet to find a persuasive logical argument definitively against it in such situations, I think you can rightfully call me someone who is conflicted and not really for or against the death penalty. I'm on the fence.

    This is a situation in which both the "for" arguments and the "against" arguments compete well, with the clear winner likely to be decided by the personal predilictions and experiences of the individual.

    You see, I have learned to trust my instincts, and my instincts tell me the death penalty is wrong. I also trust my intellect and my ability to reason, deduce and reach valid conclusions, which is in direct conflict with my instincts. Trouble is, one can never really know if one's instincts are right, or if they are laden with bias, etc.

    Consequently, I'm not sure if I can be considered an advocate either way. I would say that I'm neither for nor against it right now, not really inclined to advocate either way.