Friday, May 22, 2015

Another Argument Against Capital Punishment

This series on the death penalty got started with a flippant remark about those who are in favor of retaining the death penalty but are also pro-life on abortion by N.T. Wright.  Wright seems to think that capital punishment is in-principle immoral--at least that is what his remark, even in context, suggests.  He goes on to add, "The rest of the world, today and across the centuries, simply doesn’t see things in this horribly oversimplified way…"

On the contrary, it seems to me that his position is overly simplified.  There are no obvious arguments that capital punishment is in-principle unjustified or impermissible.  In fact, for a Christian or Jew who takes the Bible seriously, it is difficult to square such a view with some Old Testament prescriptions for capital punishment; if capital punishment was permissible once then it is not in-principle impermissible.  Hence if capital punishment is to be abolished, it seems to me that the best arguments for its abolition are complex, in-practice arguments.

A reader, JT (philosophy professor and friend of friends) offers one such argument, similar in many ways to the one in the previous post on capital punishment.  It is a good and thoughtful one.  I add two premises and a conclusion to which I do not think he will object and I comment throughout.

Here's the best argument I can think of against capital punishment: 

(1) In a society like ours, the vast majority of cases of capital punishment are motivated by vengeance. 

(2) But every action motivated by vengeance is ipso facto morally wrong. 
(3) Therefore, in society like ours, the vast majority of cases of capital punishment are morally wrong. 
[(4) If (3), and there are no other goods which would justify capital punishment in our society, it should be abolished in our society.]

[(5) There are no other goods which would justify capital punishment in our society.]
[(6) Thus it should be abolished in our society.]

I take it that (2) is fairly evident from Christian scripture and tradition (although I'm optimistic that it could also be seen to be true on the basis of natural reason). So I expect that (1) is the controversial premise here. In order to see why (1) is right, it's helpful to think of some of the legitimate aims of punishment. 

TB: I agree with (2) for the same reasons.  (1) and (5) (I think JT would agree) are the controversial premises.

Here's a list: 

(i) Restitution (where feasible, offenders should be made to replace what they've destroyed or stolen). 
(ii) Protection of the community. 

TB: Protection presumably in the form of prevention and deterrence.  
(iii) Reform of the offender (where feasible, offenders should be made to appreciate the moral badness of what they've done, and punishment can sometimes help with this). 
(iv) Vindication (this is the most difficult to explain, but I think that where feasible punishments should publicly affirm the values of the community and the dignity of victims, and publicly express disapproval for the offender's behavior). 

TB: A nice list.  Regarding (IV), this is similar to if not identical with what I referred to as a stamp of disapprobation, adding as well (rightly) a stamp of positive approbation.  I would also add that solidarity with the innocent and vulnerable is a closely related good. This might be a fifth but I leave it under (iv).  But I would also add a fifth and sixth to the list:
(v) Rendering to another/being rendered a punishment that is just

(vi) Dramatically reinforcing to the public that the primary role of government is to promote justice--rendering what is due (the secondary role being to promote the general well-being or welfare.)

It is good for one to get one's due.  Thus it is good for one to get a due punishment (of course, to a criminal it might not seem good and will certainly involve unpleasantness, but that is beside the point.)  Having said that, there can be overriding reasons for foregoing a punishment especially where forgiveness and reconciliation are real possibilities.

Moreover, I hold that the primary role of government is the promotion of justice--which I would cash out in terms of honoring natural rights, punishing injustice, and so forth.  This is, of course, a controversial assumption and I will not take the time to argue for it here.  But if it is correct, then another thing to consider is the effect of the government giving out lesser punishments which do not fit the crime.  Of course, this happens all the time with plea bargaining, and there can be overriding reasons for giving lesser punishments.  Nonetheless it is still worth considering the overall effect of a society whose government tends towards giving punishments which do not fit the degree of the crime.

I think all of these aims of punishment are legitimate, and when our society assesses punishments, we should attempt to strike a balance among these aims, achieving as many of them as we can, while preserving as many other goods as we can. But the offender's life is still a good, and so in assessing punishments we should attempt to preserve his life if we can still achieve the other aims of punishment. But in a wealthy society like ours, where we can confine people with relatively little risk to the community, we can achieve these aims of punishment at least as well by confining someone as by killing him. But if this is right, it's difficult to see what else could motivate capital punishment except a desire for vengeance. After all, if we don't *need* to take someone's life to achieve the legitimate aims of punishment, it looks like the only good explanation for our insistence on taking someone's life is the desire for vengeance. Maybe I've missed something here, but this seems to me to be a pretty strong argument.

I think JT's balancing approach is the right way to think about the issue.  We are in agreement that capital punishment is not intrinsically wrong; and presumably there are times when it is even obligatory.  The debate is then an empirical one (aside from disagreements about my additions (v) and (vi) above.)

I do wonder about what JT says about the motivation of vengeance in connection with the discussion.  It seems to me that it is only relevant if (a) there is something essential about capital punishment such that it motivates vengeance more than alternatives like life-imprisonment or (b) contingent features of our society are such that people are and will be motivated by vengeance in cases where the death penalty is a real option more than alternatives.  Both (a) and (b) seems highly questionable.  People, I take it, are motivated by vengeance a lot, and I would wager that it is just as much in civil cases as in criminal.  In fact, I would be surprised if people are not more vengeful in civil cases where a contract was broken and less in criminal cases where natural sympathy for the victim who might face a harsh penalty like death often comes to the fore.  (I was once a juror in a civil case and had to argue with a number of angry jurors who wanted to throw the book at the tortfeasers in order to "set a precedent in our county and seriously punish them."  The jurors seemed blind to the fact that penalizing them $220,000 (double what we ended up rewarding the plaintiff) would likely ruin their lives.)

At any rate, here is a proposal in the aim of getting the balance right (I haven't given this much thought, it is a blog post after all, but here goes):

Keep capital punishment in societies like ours.  Where a conviction for a capital offense occurs, have the jurors go to a second round of deliberation before the penalty phase.  In the second round the standard of evidence is upped to "Guilty beyond doubt."  Like guilty beyond a reasonable doubt, this standard is vague.  But it will be noted to the jury that it is a higher standard which is (a) not so high as guilty beyond any possible doubt and (b) does not mean that it is guilty beyond unreasonable doubt (!).  Perhaps put in place rules which explain the standard more clearly.  Guilty beyond doubt might include that there is more than just circumstantial evidence.  Then in the penalty phase let the jurors decide between death and other penalties.

With a higher standard of evidence, shorten the appeals process.  I am short on details here, but something like one appeal, and only a few years and not decades seems about right. 

Then make the review process much more inclined towards removing the death sentence in favor of life if there are reasonable signs of remorse and transformation.  Treat the prisoner--in terms of reasonable signs of remorse and transformation--as either needing to reach a preponderance of evidence or perhaps even as innocent until proven guilty.  Additionally, take steps to make the possibility of remorse and transformation much more likely.

If, in the end, the criminal shows no reasonable signs of remorse and transformation, implement the death penalty.  Make this process known to the citizens and make it also known to the citizens that the system leans in favor of withholding the death penalty from those who have shown reasonable signs of remorse and transformation.  It is only for the few who have chosen the ultimate act of defiance and death.

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