There’s been a running debate between myself, Alan Jacobs, and Jim Manzi in this space, touching down in a number of posts, over whether it matters (pragmatically) whether people believe human beings have a unique and transcendent value (whether we call that value “human dignity” or a “right to life” or a consequence of being “children of God” or what-you-will). Jim is fond of a hypothetical about a person committing a “Rope”-style murder and how you could argue that such an act was wrong without reference to transcendent values. My primary response to Jim has been: only a psychopath would actually do that, so we don’t (pragmatically) need a reason not to commit acts only a psychopath would do; the real question is not, “how, if we are nihilists, can we stop ourselves becoming psycopaths who kill for fun,” but, rather, “how, if we are nihilists, can we justify allowing psycopaths to live, rather than killing them as an act of hygiene?”
Our little debate came to my mind upon reading about the latest Supreme Court decision. I want to set aside the Constitutional questions (which boil down to: how deferential to legislatures should the Court be in applying the Eighth Amendment) and take a look at the substantive question: what justifies applying the death penalty to a given category of crime.
I would divide the justifications given for the death penalty into four categories:
Defense. Allowing this person to live poses too much risk; the only way we’ll be safe is if they are dead. This consequentialist justification may be a plausible claim in certain cases (espionage in wartime, perhaps, or certain categories of terrorists, or super-villains).
Deterrence. Criminals will fear the death penalty and hence be reluctant to commit certain crimes. The case is particularly made for the need to deter the execution of witnesses to another crime; a robber knows he is more likely to avoid conviction if there are no live witnesses, and most therefore be deterred by fear of severe sanction from executing any witnesses to his crime. The evidence on this point is equivocal, but a key counter-argument is that to serve as a deterrent, punishment must be swift and sure, and the death penalty as actually applied is neither. In any event, this is also a consequentialist justification.
Satifaction. A crime is a harm – to the individual victim, but also to society, and arguably to God – that must be retributed. Fit punishment means exacting a consequence upon the malefactor proportionate to the offense, satisfying the offended that they are “even.” This is usually not presented as a consequentialist argument, but there is an implict consequentialism in any version that does not invoke the deity, in that the reason why the offended party must be satisfied (in general, even if not in every individual case) by public justice is that otherwise confidence in public order will be undermined, and recourse will be made increasingly to private justice, or vendetta. (Versions of the argument that invoke the deity may also be consequentialist if your theology takes at face value the many biblical assertions that offense to God risks His wrathful response.)
Expiation. By committing a crime, a man becomes a criminal. Whether this transformation is understood to be a change in the quality of his soul, or whether it is merely a change in his status within society, he must do penance/pay his “debt” to society in order to be whole/be accepted back into the community. If the crime is serious enough, nothing can pay the debt but the tender of his life, and his wholeness or reintegration into the community can only be posthumous. This is really the only justification that I can’t see being construed as consequentialist. And while it need not be phrased in religious terms, it’s an argument that is difficult to make within the dominant rights-based paradigm.
(The last two justifications may sound very similar, and they are, but they are differently centered, the one on the demands of those offended, the other on the offender. A justification for the death penalty on expiatory grounds depends on a posited implied consent on the part of the executed, whereas as justification from satisfaction does not so depend. As well, a justification for the death penalty on the grounds of satisfaction can be integrated into a utilitarian framework as noted above, and could coexist with a rights-based framework if the rights of the criminal serve as meaningful limits on the ability of the society to demand satisfaction and/or if violation of rights is the rubric under which we understand the harm of crime; I’m not sure an expiatory justification can be integrated as easily if at all.)
The first justification is clearly irrelevant with respect to the case at hand: we can perfectly well lock the monster in question up forever. The second justification is probably irrelevant as well; anyone who would rape a young child is probably sufficiently deranged that the prospect of execution would be attractive rather than deterring. In any event, neither of these purely-consequentialist justifications for the death penalty bear on the debate I’m interested in about transcendent values; if the death penalty is justified in a given case on the grounds of defense or deterrence, it’s because the problem of the convicted man’s right to life has already been solved, or because these utilitarian justifications somehow outweigh it, not because these justifications are expressions of that value; that’s what I mean by saying these justifications are consequentialist.
The third and fourth justifications might be applicable. Let’s look at satisfaction first. If we begin from a premise that does not involve human rights or a unique human dignity, then a society might well demand satisfaction in blood for a crime as heinous as child rape; it’s just a question of what actual beliefs undergird the moral order of that society. If letting criminals like that live would undermine the moral order, then the law must condemn them. But if we do start from such a premise, then one must ask on what grounds society has the right to demand such satisfaction. If the fundamental moral principal of the society is, “all humans have an inalienable right to life,” then the only crime that can justify demanding satisfaction in blood is murder; any other crime is, by definition, incommensurate with a capital penalty. The only way it is not incommensurate is if the crime is “tantamount” to murder – but I should think one would be very wary of applying a literal death penalty to achieve satisfaction for a metaphorical murder.
The fourth justification is, as noted, the hardest to fit into our rights-based framework. But I think it’s the most important one for our case at hand. The rapist’s actions are so “inhuman” that by committing those actions he removed himself from the category of humanity. There is nothing he can do to rejoin the human community or make himself human again; he has made himself a monster. The life cannot be redeemed; it can only be returned. There is no whole and human life available to him; must surrender his life to make himself whole, and to make himself human.
This, I think, is what the visceral desire for a capital penalty for gruesome crimes is rooted in. Certain actions could not be taken by a human being. If we human beings allow monsters who commit them to live, we debase the meaning of what it is to be human. It’s not about whether the harm is tantamount to murder – even if the child recovers, and overcomes the trauma, the crime, and what it says about the criminal who committed it, remains. To deny this – to say that he can live, and be counted as human – feels like society is saying: this, too, is human, and not alien.
Is it? For myself, I’m comprehensively skeptical, as I’ve noted before, of our rights-based discourse. I don’t think we have inalienable rights; I think we have inescapable duties. I’m more confortable arguing against the death penalty on the pragmatic grounds that we don’t want to grant ourselves the power lest we misuse it than arguing on the grounds that it violates a criminal’s inalienable right to life. But it does seem to me that if you start from a premise of such a right to life, then you can only barely justify the death penalty in cases of murder (on the grounds of satisfaction and/or expiation – the consequentialist justifications will never fly), and certainly not in any other cases. If our humanity is inalienable, that really does mean that nothing we do can take it away from us. In which case you cannot say that raping a child makes someone into such a monster as cannot be suffered to live.