We All Deserve To Die
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.
Do people have to have an “inalienable” right to life in order to have a right to life?
I agree that any absolute principle is bound to create logical inconsistencies when applied to life as it is lived. My guess, though, is that anyone who argues to you about an inalienable right to life is more likely to withdraw the “inalienable” part than the “right to life” part when pressed.
My intuition is that the child, who is presumably basically innocent and has a whole life ahead of her, has a greater right to life than the rapist, who is significantly less innocent. My guess is that he has done more damage to her life with his actions than the state can do by ending his, because I value hers more.
It’s a moral intuition, so I don’t believe I could defend it against a determined analysis, but I still think it points in some worthwhile directions. I think it’s related to, but not identical to your fourth point. It’s not that the criminal must die to rejoin society, it’s that as the criminal’s actions remove him from society, they reduce society’s interest in preserving his interests, including his life, until the other factors may outweigh whatever interest remains.
On an unrelated point, Alex Kozinski had a good article back in the 90s where he argued that the death penalty, if used at all, should be used to maintain the general moral order – to signal that a given class of crimes were so unforegivable that they required the ultimate punishment.
— J Mann · Jun 25, 09:11 PM · #
To deny this feels like society is saying: this, too, is human, and not alien. Is it? … 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.
Aren’t these are linked? We should be afraid of misusing our ability to perform capital punishment because we believe in human fallibility.
But for the same reason, because I believe in human fallibility, we should be afraid of using our ability to designate a person as “less than human.” Wielding this power leads us to bad places so frequently – frequently, I think, to a place where we begin to doubt our own humanity.
— bcg · Jun 25, 10:24 PM · #
From a conservative perspective, what’s wrong with saying that administering capital punishment is simply not a legitimate power of government?
When permanent incapacitation is a viable option, a limited government, cognizant of the fallibility of mankind, has no place exacting such an absolute and irreversible sanction as the death penalty.
— southpaw · Jun 25, 11:36 PM · #
I think that government should be out of the execution business for various reasons, and I’ll grudgingly stick to my guns in even the most heinous cases. That leaves the state on the hook, though, for the care, feeding, and basic maintenance of the very worst miscreants. In a duties-based moral framework (which I share with Noah), does that mean that once we decide not to execute our worst criminals, we (meaning we the citizens, the taxpayers, and the would be victims of certain predators) assume the duty of preserving their health and basic well-being? Isn’t that problematic in its own right? Has anyone written about the question from this angle?
— Matt Frost · Jun 25, 11:48 PM · #
Two points: No. 1
The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below
Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
This is a truism.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses, find for death penalty deterrence.
A surprise? No.
Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don’t. Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.
What prospect of a negative outcome doesn’t deter some? There isn’t one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
“This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death.” (1)
” . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment.” (1)
“Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution.” (1)
Some death penalty opponents argue against death penalty deterrence, stating that it’s a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that “lifers” have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
——–
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.
6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.
The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers — The New York Times — has recognized that deception.
“To be sure, 30 or 40 categorically innocent people have been released from death row . . . “. ‘ (2) This when death penalty opponents were claiming the release of 119 “innocents” from death row. Death penalty opponents never required actual innocence in order for cases to be added to their “exonerated” or “innocents” list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions – something easily discovered with fact checking.
There is no proof of an innocent executed in the US, at least since 1900.
If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Unlikely.
———————–
Full report - All Innocence Issues: The Death Penalty, upon request.
Full report – The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein, Cass_Sunstein(AT)law.uchicago.edu
Prof. Adrian Vermeule , avermeule(AT)law.harvard.edu
Full report http://aei-brookings.org/admin/authorpdfs/page.php?id=1131
(2) “The Death of Innocents’: A Reasonable Doubt”,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times
—————————–
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
— Dudley Sharp · Jun 25, 11:58 PM · #
The Death Penalty and the right to life
Dudley Sharp, Justice Matters
Some wrongly state that executions are a human rights violation. The human rights violation argument often comes from European leadership and human rights organizations.
The argument is as follows: Life is a fundamental human right. Therefore, taking it away is a fundamental violation of human rights.
Those who say that the death penalty is a human rights violation have no solid moral or philosophical foundation for making such a statement. What opponents of capital punishment really are saying is that they just don’t approve of executions.
Certainly, both freedom and life are fundamental human rights. On this, there is virtually no disagreement. However, again, virtually all agree, that freedom may be taken away when there is a violation of the social contract. Freedom, a fundamental human right, may be taken away from those who violate society’s laws. So to is the fundamental human right of life forfeit when the violation of the social contract is most grave.
No one disputes that taking freedom away is a different result than taking life away. However, the issue is the incorrect claim that taking away fundamental human rights — be that freedom or life — is a human rights violation. It is not. It depends specifically on the circumstances.
How do we know? Because those very same governments and human rights stalwarts, rightly, tell us so. Universally, both governments and human rights organizations approve and encourage taking away the fundamental human right of freedom, as a proper response to some criminal activity.
Why do governments and human rights organizations not condemn just incarceration of criminals as a fundamental human rights violation? Because they think incarceration is just fine.
Why do some of those same groups condemn execution as a human rights violation? Only because they don’t like it. They have no moral or philosophical foundation for calling execution a human rights violation.
In the context of criminals violating the social contract, those criminals have voluntarily subjected themselves to the laws of the state. And they have knowingly placed themselves in a position where their fundamental human rights of freedom and life are subject to being forfeit by their actions.
Opinion is only worth the value of its foundation. Those who call execution a human rights violation have no credible foundation for that claim. What they are really saying is “We just don’t like it.”
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites
homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx
www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
yesdeathpenalty.googlepages.com/home2 (Sweden)
www(dot)wesleylowe.com/cp.html
Permission for distribution of this document, in whole or in part, is approved with proper attribution.
— Dudley Sharp · Jun 26, 12:01 AM · #
“In a duties-based moral framework (which I share with Noah), does that mean that once we decide not to execute our worst criminals, we (meaning we the citizens, the taxpayers, and the would be victims of certain predators) assume the duty of preserving their health and basic well-being?”
I’m not so sure this is true. Perhaps this is a quibble but, as I understand it, the mental condition of the inmates at the supermax prison in Colorado invariably deteriorates over time. The government endeavors to keep those inmates relatively comfortable, but doesn’t go so far as to guarantee their “health and well-being.” Comfort seems like a slightly less irksome responsibility.
More to the point, I think an analysis of the duties that focuses on the costs of incarceration is too narrow. The US government’s duties, I’d argue, are to keep society safe and preserve individual liberty and autonomy as best it can. It should therefore aspire to the method of keeping society safe that encroaches least on the lives and liberty interests of its citizens. Cost cutting should be a part of that encroachment analysis (since taxes tend to impinge on liberty), but only a part; another part of the same analysis should attempt to limit, as much as possible, the practical scope of the government’s powers.
— southpaw · Jun 26, 02:06 AM · #
Noah:
Ths is obviously a very well-thought-out post, but it seems to me that absent any transcendent value for human life, I would simply advocate anything from widespread use of the death penalty to outlawing it, simply based on what I perceived to be in my material self-interest. More precisely, that would be my reserve position. I would avocate whatver postion being seen publicly advocating I believed would best serve my material self-interest. All the duties, satisfaction and so in the latter two justification would, I think, sound to me like a bunch of chatter about unicorns and the tooth fairy. The idea, in fact, of justification itslef wouldn’t make much sense to me.
— Jim Manzi · Jun 26, 03:00 AM · #
I keep my circle small, but within that circle everything is transcendent. So to me, death or life-time incarceration are qualitatively the same thing. A person who intentionally violates — kills or physically penetrates (broadly defined) — another human being should be removed. Not for retribution or deterrence or whatever, but simply for me and mine.
Since these two punishments are pretty much the same thing to me — i.e., I don’t weep for either, I don’t lose sleep over either, I don’t really have a preference over either so long as they are final — then the rest of the debate comes down to cost differential and political viability. But that’s your debate, not mine.
(Now that I see Jim has posted, mark me down for his position.)
— JA · Jun 26, 03:09 AM · #
“how, if we are nihilists, can we justify allowing psycopaths to live, rather than killing them as an act of hygiene?”
I’m pretty sure we could put together a good slippery-slope or downstream argument, or use the precautionary principle, or try to persuade based on the principles of pragmatism and inadequate knowledge. Or maybe we can use Jim’s idea and say that arguing for the extermination of psychopaths is a good way to become a social pariah, and therefore it’s not in your material self-interest.
Other than that, maybe a more fine-grained understanding of information dissemination, social-heat differentials, human psychology and dissipative systems would give us a fighting chance?
But if not, if no sufficient reason exists to justify allowing psychopaths to live, why not just kill them outright?
— JA · Jun 26, 03:26 AM · #
“But if not, if no sufficient reason exists to justify allowing psychopaths to live, why not just kill them outright?”
Because we’re not confident of our own perfection. If we did refrain from killing, it would not be because we denied the existence of men who ought to die . . . just that we doubted our own ability to find them.
Given a tabula rasa, I might believe that a government of men is capable of identifying the psychopaths among us. Here in the real world, I’m chastened by a historical record that suggests any such capability is badly compromised by passion and prejudice. The system makes mistakes (see, e.g., http://en.wikipedia.org/wiki/Rubin_Carter); such errors shouldn’t be permanent.
— southpaw · Jun 26, 04:09 AM · #
JA, southpaw: I think we’re all in agreement. At the end of my post, I said I’m most comfortable with arguments against the death penalty on pragmatic grounds: it won’t be applied fairly; we aren’t wise enough to grant such a power to the state; you can’t reverse an execution in the case of actual innocence; etc.
I was asking a different question, aimed, basically, at Antonin Scalia, who appears to believe both in a transcendent right to life and that the death penalty is essentially moral because retribution is essential to the moral order. I’m pretty sure that, in that framework, the Louisiana law is immoral. Which doesn’t mean he needed to strike it down as unconstitutional – that’s why I bracketed the constitutional question. But I have a suspicion that Scalia doesn’t consider the law immoral – that he considers it to be one of any number of reasonable death penalty statutes. That’s what prompted the post. I probably should have been clearer.
— Noah Millman · Jun 26, 12:40 PM · #
J Mann: obviously I’m using the word “inalienable” for the allusion, but the important distinction is whether rights come from society (from positive law or custom) or from outside society (from God, presumably, though possibly deducible by reason alone from self-evident first principles – noting that in Jefferson’s formulation the existence of the inalienable right to life as such is self-evident).
If you’re rejecting the idea of natural rights, fine. I’m discussing a question that presumes a belief in natural rights.
— Noah Millman · Jun 26, 12:45 PM · #
Jim:
If I understand your framework correctly, the idea of natural rights has persuasive force, and the idea of material self-interest narrowly construed has force, but no other posited value-scheme has any persuasive force. If that’s your personal perspective, fine; but rights are no less comparable to unicorns than duty, honor, etc. – indeed, arguably much more so. So while I can accept that you, personally, find rights more believable than these other concepts, I’m not sure why you find it hard to see why someone else might see things the other way around.
— Noah Millman · Jun 26, 12:49 PM · #
I think there is another sense of “deterrence” that doesn’t get a lot of play, and is more valid that the sense in which it is normally used. If a person is executed for a crime, it can be said with absolute certainty that that person will never commit that particular crime (or any other) again.
— Mark · Jun 26, 12:53 PM · #
Matt:
One of the nice things about a duty-based framework as opposed to a rights-based framework is that a rights-based framework tends towards absolutism. A violation of rights is just that – a violation. A failure to do one’s duty, rather, is just that – a failure. So I don’t think a duty of care towards awful people in prison is acutely problematic – just an unpleasant and distressing reality.
A society has a duty of care towards its prisoners, whatever the reason might be that they are imprisoned, because society imposed a dependency. An alternative to imprisonment that would impose no duties on society is banishment, or outlawry. That’s only a practical alternative in a world where there is a universe outside of society, and part of the modern condition is that there is no such universe anymore.
— Noah Millman · Jun 26, 01:02 PM · #
Mark:
That’s not deterrence. See my the first of my four justifications for the death penalty: defense.
— Noah Millman · Jun 26, 01:03 PM · #
I probably should have been clearer.
Nah. Revisiting your post in the sober light of morning, I see I would have missed some points on the “Reading Comp.” part of the exam. Dollar beers, provocative subject and all that.
You were asking a Weltanschauung question, a world-viewing question, an Archimedean-point question, an Ourworld question. Discordantly, I gave you a Lebensanschauung answer, a life-viewing answer, an Existenzphilosophie answer, a Myworld answer. And as Rosenzweig wrote (in his shockingly profound Star of Redemption), “The contrast of the life-centered and the world-centered points of view comes down so sharply to a contrast with the ethical portion of the world-centered view that one is inclined to designate questions of the life view as veritably meta-ethical.” Thus, as you implied in your response to Jim, unless we each start with the same life-view intuitions and leaps of faith on the meta-ethical level, our ethical positions cannot be argued into reconciliation.
* * *
But turning to your question about Scalia, I’m not sure we can bracket the constitutional question, or if we can, I’m not sure where that gets us. If your goal is a psychological profile of Scalia, perhaps, but it sounds like you’re asking a different question, an ethical question. If that’s what is itching you, take it from me: filtering out the constitutional framework of a SCOTUS opinion to distill an underlying ethics is a good way to give yourself a bad case of the sillies. Finding legal consistency is hard enough. Ethical consistency, even of a single justice, is nigh unheard of (actually, this probably applies to persons in general).
One problem is that our philosopher-kings and -queens on the bench are not really philosophers; they are more like surgeons. (Actually, this may not be a problem after all.)
Pulling some pet peeves of mine (or as the late George Carlin would call them, psychotic hatreds) out of a hat, let me give you some for instances. For one, explicit in the “evolving standards of decency” doctrine is the idea that standards evolve in one direction only. Thus it has been concluded that the Eighth Amendment “draws its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles). That paradigmatic conclusion now conditions every SCOTUS opinion on cruel and unusual punishment; for better or worse, for richer or poorer, ‘til death do us part.
Thus, what sounds very democratic is actually nothing of the sort. What if our “maturation” drives us into the diminishing marginal returns of progressive decency, and what if the people, craving order, take “a step backward” and reinstitute the death penalty, or allow waterboarding in exigent circumstances to obtain critical information, or authorize via legislation anything else that violates the cultivated sensibilities of The Nine? Then guess what? That’s right, too bad for the people: “Sorry lads, evolution equals progress. We already said so; right here, as a matter of fact. Therefore, we’re going to have to overrule what is clearly a case of barbaric recidivism, and we’re going to do it using a doctrine that should, if wielded consistently, yield precisely the opposite result. Next!” And they would do this while claiming the guidance of “objective indicia of society’s standards.”
But this is all very obvious and easy. If you keep your eyes open, the whole thing is problematic. Kennedy writes that “when the law punishes by death, it risks its own sudden descent into brutality.” Weems v. U.S. says that punishment should be “graduated and proportioned to the offense.” Furman says “the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment.” Atkins reserves the death penalty only for those “most deserving of execution.” Enmund is solicitous of history, the standards of the people, and “international opinion”, but reserves ultimate authority to “the Court’s own understanding.” Clever, that.
Kennedy’s opinion admits that Louisiana reintroduced the death penalty for child rape in 1995. Other states have since followed suit, but 44 have not. Will those 44 change their minds in the future? Who knows, right? In 1995, it would have been 1 against 49. Who would have thought, in 1995, that Louisiana was starting a trend that would see a 600% increase in child-rape capital-offense statutes in a little over ten years? But after comparing statistics with other cases, Kennedy writes that it is “of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.” Does anybody here think this is sound reasoning, when the only thing the justices should be doing is interpreting the meaning of the phrase “cruel and unusual punishment” and applying it to the facts of the case at hand?
Well, perhaps you do. For me, though, it’s too squishy. If we allow that execution is not “cruel and unusual punishment” in itself (and that’s the Court’s position), then it’s nigh impossible to get from there to “Execution for child rape is cruel and unusual punishment” without substantial logical leaps and inconsistencies.
And that doesn’t even address the transcendent right to life and other rhetorical shenanigans.
— JA · Jun 26, 03:12 PM · #
An alternative to imprisonment that would impose no duties on society is banishment, or outlawry. That’s only a practical alternative in a world where there is a universe outside of society, and part of the modern condition is that there is no such universe anymore.
You mean not yet.
In the year 2000…we’ll banish criminals by plugging them in.
— JA · Jun 26, 03:36 PM · #
JA:
Whew!
First off, I’m not going to defend the jurisprudential history of the Eighth Amendment. On its face, the text does not say anything at all about proportionality; it speaks of cruelty and unusualness. If I were looking at the text fresh, without any context from the period of enactment or subsequent history, I’d assume it meant to forbid punishments that were essentially designed to cause suffering (as opposed to punishments, such as being shackled and put to hard labor in a chain gang, that do cause suffering but are not fundamentally about causing suffering in the way that, say, flogging is), and to forbid arbitrary imposition of punishments (i.e., to impose a standard of relative proportionality for punishment between different offenses and offenders, rather than some absolute standard of proportionality).
But that’s not how the Amendment has evolved as it has been interpreted. Rather, the reigning interpretive paradigm pretty explicitly gives the Court the responsibility to determine whether, in its estimation, a given punishment is disproportionate to the crime or is morally objectionable to the society. The dissent in Kennedy v. Louisiana does not question this paradigm, but seeks to argue that the Louisiana law does not impose a disproportionate punishment nor flout a clear moral consensus. But there’s a problem with its reasoning.
If the Court is always to take its cues on the question of consensus from the electorate, then the Court by definition cannot strike down an act of the legislature on Eighth Amendment grounds. Alito’s argument, in effect, is that the Court shouldn’t strike anything down until it becomes clear, over time, what the true consensus is. One can understand why that’s not an appealing theory, but that’s what he’s got because he’s not willing to repudiate the paradigm as such. So long as we remain within the existing paradigm, all we’re debating is how deferential the Court should be, and whether there are any other objective clues the Court can use for whether to be deferential or not.
I wanted to bracket the Constitutional issues in my original post precisely because I find Eighth Amendment jurisprudence to be incredibly sterile. As long as we operate within the existing paradigm, there are no interesting issues to discuss; and there is no reasonable prospect for exiting that paradigm, only shifting the Court a few clicks to the left or right in terms of deference.
I brought up Scalia in the comments because he has addressed the ethical questions, in writings and speeches outside of his Court opinions. He does believe in a natural right to life, and he does believe that the death penalty is nonetheless justified because of the need to uphold the moral order by demanding a life for a life. I think that puts him in a place where he may consider the Louisiana statute to be legal, but ought not consider it moral.
I don’t happen to think he believes that, but that’s a psychological point which amounts to saying I think he holds mutually-contradictory beliefs, as do we all.
But if he followed his beliefs to the conclusion that I think they lead to, it would be edifying to hear him articulate a theory of Eighth Amendment jurisprudence that allows him to set aside his own moral judgement in favor of some other standard that is not also arbitrary and that preserves some meaning to the words of the Eighth Amendment (as a comprehensive policy of deference would not do).
— Noah Millman · Jun 26, 04:06 PM · #
Great discussions, I need to read this when I’m not supposed to be working.
I’d have to say, Noah, I largely considered myself a proponent for reason #3, satisfaction, which makes me uncomfortable to think about now. Re: southpaw’s first post, nowadays I just don’t want government in the business.
Matt Frost raises a good question. In my case, my draconian view of how we should make the prison experience for these low-lifes takes away some of the sting of supporting them.
— Ferrell · Jun 26, 04:20 PM · #
Noah,
You write: 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.I don’t see why a conception of natural rights requires that the right to life be paramount — isn’t it at least logically consistent to argue that there are natural rights, among them both a right to life and a right not to be raped by your stepfather without presuming that one right is absolute relative to the other?
In my view, a heinous criminal has a right to life, but less of a right than an honest citizen. Is it really impossible for me to logically argue that that variable right arises from natural law or first principles?
(I don’t know if I do actually believe in natural law; but if you are arguing that a natural law right to life is inconsistent with execution for rape, it seems to me that you are assuming more about the nature of that right than you have the right to do.)
Thanks for the very thoughtful post, and the response – JM
— J Mann · Jun 26, 04:27 PM · #
Noah,
Yeah, sorry for the verbosity. It’s that damn coffee.
1. Agree with everything you say about Eighth Amendment jurisprudence, except I think you undervalue one part of the existing paradigm (from Gregg): the presumption of constitutional validity, and the burden-shift that presumption creates. I thought Alito’s dissent did a fine job of showing how that burden had not been met, given the paradigm both sides are working under, and how stretched the majority’s arguments were.
2. On Scalia, I assume you mean this article he wrote in First Things?
Unless I’m mistaken, this is what you are saying:
1. When deciding an 8th Amendment case, a justice relies either on a) his own moral judgment, or b) a hopefully-consistent, intersubjectively-accessible theory which supplies c) a standard by which to measure the particular facts of the case.
2. The prevailing 8th Amendment theory has given us a standard that is a) arbitrary, and/or b) tends to render the actual text meaningless, and c) is sterile given how, in practice, it usually comes down to “you either buy it or you don’t.”
3. Therefore, is there some other theory that Scalia might put forth that is a) initially informed by his moral perspective, but also b) internally consistent and self-sustaining as a constitutional theory.
I think Scalia would heartily agree with 1 and 2, but roundly reject the legitimacy of using 3(a) in the formation of 3(b). As a Catholic, he might cite Matthew 22:21 (“Render unto Caesar…”), which gives him the religiously-consistent freedom to disconnect his duties to God from the duties he’s incurred as a supreme officer of the State. With this freedom he can then turn his attention to articulating an order-maximizing constitutional theory that, when wielded, delivers a high degree of prescriptive certainty by pegging interpretation to the static — i.e., the intentions of the drafters at a particular point in time and space — rather than the arbitrarily fluctuating — i.e., evolving standards of decency.
As he writes in that article, “For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today.” I imagine he would buy into a correctio strategy for evolving the constitution, as would I.
— JA · Jun 26, 05:02 PM · #
But perhaps your point was to call attention to this (from same article)?
“I could not take part in that process if I believed what was being done to be immoral…With the death penalty, on the other hand, I am part of the criminal-law machinery that imposes death-which extends from the indictment, to the jury conviction, to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder).“
I’m just not sure why you think his stated beliefs imply that he would find Louisiana’s statute to be immoral. In that same article, he says explicitly, “I do not find the death penalty immoral.” Nowhere does he limit the death penalty to “one life for a life” scenarios. In fact, just the opposite.
He writes, referencing St. Paul, that “government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.” The essay, save for a few particulate examples, keeps the broader terminology of ‘evil’, rather than limiting the death penalty to murder.
— JA · Jun 26, 05:30 PM · #
Expiation does not conflict with a rights framework, properly construed. You say punishment has the ‘implied consent’ of the punished on the expiation model (I’d call it the retribution model). But if punishment is really a morally necessary expiation, then it presupposes more than implied consent— namely, implied rightful demand. Thought through, retribution turns out to be something owed the criminal by the commonwealth. It is the only way of treating him commensurate with his inalienable dignity.
— matt · Jun 26, 06:28 PM · #
I’m completely comfortable holding in my mind my belief in natural law and my conviction that a person can by their choice remove themselves from humanity in a way requiring their death. I don’t consider those convictions exclusive and have yet to find a convincing argument that I should.
I opposed the death penalty when we lacked the tools to remove significant doubt. Given advances both in technology and society over the last two decades I’ve come to believe we’ve passed that tipping point and am now completely in favor of it – including horrendous acts not necessarily ending in murder.
I’m indifferent whether it is a deterrent. I’m indifferent regarding satisfaction. I’m not at all concerned with expiation. I view it solely as humanity’s compact with humanity.
— Observer · Jun 26, 08:28 PM · #
The article is founded on several premises, including this one regarding “execution in self
defense”.
“The first justification is clearly irrelevant with respect to the case at hand: we can perfectly well lock the monster in question up forever. “
This premise is simply false. I can cite several cases in which “forever” turned out to be years or months or even days. For example, in the early 1970’s then-Governor Tony Anaya of New Mexico commuted all the death-row sentences in his state to life in prison. Less than 3 months later, several of the former death row inmates escaped. All were recaptured, but two stick in my memory: they got as far as Williams, Arizona where they kidnapped a family, used a motel room to rape the wife, then the 12-year-old daughter, while the father was trussed up to a chair. I have reason to believe that if the police had not succeeded in a rescue, all of the family would have perished, either in that room or out in the desert.
Question for Noah: what would you say to the 12 year old girl? That her rapist simply couldn’t be executed for his previous crimes, because we humans are fallible? Therefore, for the good of humanity, she had to suffer?
Another case from Texas is worse. A man was convicted of murder in the 1st degree around 1972 or so and condemned to be executed. The USSC case that overturned executions spared him and his sentence was commuted to “life in prison”. Around 1992-93, the Texas prison system was extremely crowded, and parole authorities began releasing prisoners, under the direction of liberal Governor Anne Richards. One of the prisoners paroled was the murderer in question. In the 3 months after his parole, he raped and murdered at least 5, and possibly more, women in Louisiana, Alabama and Florida. The last murders he committed were particularly notable: he was hitchiking, and a woman with her children picked him up. He took over the car, drove to a remote area, bound the family, then took the children one by one to a nearby body of water and murdered them by drowning. Then he raped their mother, and murdered her IIRC by strangulation.
There are few certainties in life, but we can be sure this man will not murder again, because after due process of law, the State of Florida executed him, and there are no parole boards in Hell.
Question for Noah: what would you say to the survivors? To the man whose entire family perished in a foul, and horrible manner? That the murderer of his wife and children simply couldn’t be executed, because we are fallible and make mistakes? That his family had to die, in order to prevent some sort of existential crisis within humanity? What would you say to someone killed by a “monster” who was “locked up forever”, but forever suddenly came?
How do you know the future with such certainty, if you are a fallible human? How do you know that there won’t ever be a bleeding heart Governor, with connections to the literary world who lets another Jack Henry Abbott out? Or another bleeding heart parole board that decides, well, Charlie Manson really isn’t all that dangerous nowadays? Or an escape?
Given a perfect knowledge of the future, surely you are richer than Soros, from shorting the DOW today alone?
— nosy · Jun 26, 09:43 PM · #
I have a second objection to the notion of fallibility as presented in this article: it is a step towards the abollition of self defense. If we are too fallible to carry out executions, then why are we not also too fallible to use deadly force in self defense? Sure, Joe Blogs may be waving a large knife around, blocking any chance for escape while bellowing “I“M GONNA KILL YOU DEAD”, but maybe he doesn’t really mean it? Maybe he’s just a performance artist and we’re confused? Maybe he’s just had a bad hair day, and this is how he decompresses? Maybe he’s a victim of one or more forms of social prejudice, and so we can’t really know what his inner demons are or how his poor childhood has left him with deficient coping skills? Better not resist, better just give him and his friends whatever they want. Because we really can’t know for sure if he’s a monster or not, right?
For that matter, police are fallible humans, how can we possibly trust them with guns, when we know they do shoot the wrong person from time to time? Better disarm them, right? And everyone else, right? Because fallible humans have no business possessing weapons, they might hurt someone…
How far down the slope to surrendering to evil shall we ride this particular handcart?
— Nosy · Jun 26, 09:58 PM · #
“From a conservative perspective, what’s wrong with saying that administering capital punishment is simply not a legitimate power of government? “
Just about everything. One, it starts with the assumption that conservatives have a libertarian aversion to state power in and of itself. Two, it ignores the fact that the death penalty is the historical and traditional penalty for certain very serious crimes. Three, it glides past the fact that it is conservatives who support the death penalty and non-conservatives who oppose it, in aggregate.
— flenser · Jun 27, 03:29 AM · #
“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.”
Our legal system is one hundred percent consequentialist. It’s not a school of theology or philosophy, not should it be.
— flenser · Jun 27, 03:34 AM · #
“One, it starts with the assumption that conservatives have a libertarian aversion to state power in and of itself.”
Heaven knows where I would have gotten that idea. (Reagan, Buckley, Goldwater, Norquist . . .) You’re saying conservatives don’t actually believe in more limited government? Is that grand principle limited to the quotidian task of reversing the partisan setbacks of the New Deal?
“Two, it ignores the fact that the death penalty is the historical and traditional penalty for certain very serious crimes.”
This somewhat misstates the history. It is the historical and traditional penalty for all felonies, including housebreaking and horse theft. So the death penalty, in truth, was the historical and traditional penalty for all serious crimes. I do take your point, but I don’t see how incarceration as punishment amounts to some radical plot. Relative to the American republic, incarceration is pretty long in the tooth as a punishment for serious crimes as well.
“Three, it glides past the fact that it is conservatives who support the death penalty and non-conservatives who oppose it, in aggregate.”
Conservatives have been known to support lots of non-conservative things; they’ve also been known to conflate “republican voters” with “conservatives” when it suits their purposes.
— southpaw · Jun 27, 06:55 AM · #
“how, if we are nihilists, can we justify allowing psycopaths to live, rather than killing them as an act of hygiene?”
Of course, in Iran, executing gays is considered an act of hygiene.
— - gearguy · Jun 27, 10:16 PM · #
‘What a pity that Bilbo did not stab that vile creature, when he had a chance!’
‘Pity? It was Pity that stayed his hand. Pity, and Mercy: not to strike without need.
I am sorry,’ said Frodo. ‘But I am frightened; and I do not feel any pity for Gollum.’
‘You have not seen him,’ Gandalf broke in.
‘No, and I don’t want to,’ said Frodo. ‘I can’t understand you. Do you mean to say that you, and the Elves, have let him live on after all those horrible deeds? Now at any rate he is as bad as an Orc, and just an enemy. He deserves death.’
‘Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends. I have not much hope that Gollum can be cured before he dies, but there is a chance of it.’
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— Douglas Field · Jul 7, 10:10 PM · #