A Higher Discussion on Capital Punishment

[Cross posted from Street Prophets with massive revision - it didn’t light up the discussion I wanted. Of course, that could just be because it is a bad post . . .]

Saddam Hussein's execution has, rightfully, brought up the discussion of capital punishment. For me that discussion has been on a nearly useless plane. The emotional knee-jerk reactions (my own included: "Good") which largely control the discussion in a time like this are good if you are attempting to work up a good rabble-rousing speech where you fire up the emotions of the crowd rather than challenging their intellect; but I am not into that.

Throwing the words "revenge" and "murder" around about the execution of a butcher like Saddam is only guaranteed to muddy the waters in the capital punishment debate. In the end, someone may get me to view the execution of Saddam as "murder" (a charged word for me) and Iraqi justice as "revenge" -- but that will take a little philosophical work. However, I am perfectly willing to engage in that work; so, let's see if we can think this out a little deeper . . .

Before I get started, however, the discussion below deals with the word "revenge" - it doesn't really deal with the word "murder". My problems with the word "murder" are two-fold:

1. Capital punishment did not fall within the commandment not to murder in scripture. That is obvious in both the Old and the New Testament. Avery Cardinal Dulles' "Catholicism & Capital Punishment" deals with this exegesis very well [Please read the whole thing while you are over there]
2. In secular law, there is distinction being murder and homicide; and distinctions between those that are justifiable and those that are not. In that sense, society has a definition for murder (the intentional, unjustified taking of an innocent life) that must be met. I think abortion is the intentional (and very often unjustified) taking of an innocent life but, since society as a whole is not agreed that this is "murder" (or even the taking of an innocent life in the way I mean it) I will never use that word for abortion because its intent is to create heat and not shed light. Nor, without adequate foundation, do I think capital punishment can be called murder.

Now, on to the core essay: J. Budziszewski is Professor of Government and Philosophy at the University of Texas at Austin. This article is adapted from a chapter of A Call for Reckoning: Religion and the Death Penalty, edited by John Carlson, Eric Elshtain, and Erik Owens.

"Capital Punishment: The Case for Justice"
First Things, August/September 2004

Budziszewski:

So weighty is the duty of justice that it raises the question whether mercy is permissible at all. By definition, mercy is punishing the criminal less than he deserves, and it does not seem clear at first why not going far enough is any better than going too far. We say that both cowardice and rashness miss the mark of courage, and that both stinginess and prodigality miss the mark of generosity; why do we not say that both mercy and harshness miss the mark of justice? . . .

[Betty Black at Street Prophets: What he does not state in his argument (or, at least in the parts excerpted) one key point which Aristotle argues, which is that usually one of the vices is wither prefered to the other vice, or one of the vices is more easily fallen into. This is important in speaking of justice and mercy. I would expect near universal agreement that: 1) mercy is preferable to punishment-beyond-dessert . . . even if just-dessert is preferable to mercy; and 2) it is easier to slip into over-punishment than to error via mercy.]

. . .Making matters yet more difficult, the argument to abolish capital punishment is an argument to categorically extend clemency to all those whose crimes are of the sort that would be requitable by death.

I ask: Is there warrant for such categorical extension of clemency? Let us focus mainly on the crime of murder, the deliberate taking of innocent human life. The reason for this focus is that the question of mercy arises only on the assumption that some crime does deserve death. It would seem that at least death deserves death, that nothing less is sufficient to answer the gravity of the deed. As Scripture says: "Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image" (Genesis 9: 5-6). Someone may object that the murderer, too, is made in God's image, and so he is. But this does not lighten the horror of his deed. On the contrary, it heightens it, because it makes him a morally accountable being. Moreover, if even simple murder warrants death, how much more does multiple and compounded murder warrant it. Some criminals seem to deserve death many times over. If we are considering not taking their lives at all, the motive cannot be justice. It must be mercy.

He presents the three questions that must be answered about mercy in regards to capital punishment:

1. Is it ever permissible for public authority to give the wrongdoer less than he deserves?
2. If it is permissible, then when is it permissible?
3. Is it permissible to grant such mercy categorically?

Later, Budziszewski will examine these questions both from the perspective of God's mercy and utilitarianism. First, he starts with the underlying purpose of punishment in general and its need to exact retribution

Society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and worldly goods in order to give himself undeserved benefits. Deserved punishment protects society morally by restoring this just order, making the wrongdoer pay a price equivalent to the harm he has done. This is retribution … the primary purpose of just punishment as such

and not revenge

…which is guided by a different motive. In retribution the spur is the virtue of indignation, which answers injury with injury for public good. In revenge the spur is the passion of resentment, which answers malice with malice for private satisfaction.

These distinctions must be dealt with by anyone who wishes to label punishment in general (by God or by man) - and capital punishment in specific - as revenge: What is the measured "just punishment" for a crime; and what is the motive of the punishers in carrying it out? The latter will not change what just punishment is, but will guide our education and shaping of our societal mores.

Budziszewski believes that just punishment/ retribution is the primary purpose (societal good) of criminal punishment:

1. just punishment is not something which might or might not requite evil; requital is simply what it is.
2. without just punishment evil cannot be requited.
3. just punishment requires no warrant beyond requiting evil, for the restoration of justice is good in itself.

He examines three other possible goods that come out of punishment:

• it might rehabilitate the criminal
• physically protect society from him
• deter crime in general

but gives reasons why they are secondary to retribution and not primary:

Although these might be additional motives for just punishment, they are secondary. In the first place, punishment might not achieve them. In the second place, they can sometimes be partly achieved apart from punishment. Third and most important, they cannot justify punishment by themselves. In other words, we may not do more to the criminal than he deserves--not even if more would be needed to rehabilitate him, make him harmless, or discourage others from imitation. For example, if a man punches another man in the nose, we may not keep him in a mental institution forever just because he has not yet become kind in spirit, kill him because we cannot be sure that he will never punch again, or torture him because nothing less would deter other would-be punchers . . .

[For those who have read it, C.S. Lewis's That Hideous Strength presents in the "criminal reform" of N.I.C.E. this very picture of holding people indefinitely to "rehabilitate" them rather than "cruelly" punish them. See also the real gulags of the Soviet Union; Gitmo; and re-education camps in China for examples where rehabilitation, protection, and deterrence reign supreme over just punishment]

. . . For these reasons, rehabilitation, protection, and deterrence have a lesser status in punishment than retribution

It seems to me, from other discussions, that many folks consider these to be the primary reasons for punishment; and certainly constitute the primary argument against capital punishment. Budziszewski again:

The argument against capital punishment runs as follows. True, the purpose of retribution is served by the murderer's death, but under certain circumstances retribution might interfere with other purposes of punishment: it might prematurely put an end to his rehabilitation; it might undermine deterrence (say, by so angering his compatriots that they, too, commit evils); and it might not be necessary for the physical safety of others. Therefore, it would be better not to kill him, but to protect society by other means--perhaps by locking him up forever. The difficulty with this argument is that it seems to regard the secondary purposes of punishment as sufficient to overturn its primary purpose. Rehabilitation, protection, and deterrence cannot justify doing more than what retribution demands; how can they justify doing less?

This brings us back to the only mediating influence on capital punishment - mercy - and the three questions at the top of the post. Budziszewski now looks at rehabilitation, protection, and deterrence in the light of mercy; and utilitarianism.

[You need to read the whole article at some point -- so here is where you need to go there, read it, and then come back when you are done . . . . . . . . Are you back? Great.]

Finally, he deals with some other issues outside these central ones:

Let us consider what objections might be made against our argument to this point. The judicious Cardinal Dulles, to whom my discussion is already indebted,

[and who the reader here at Brain Cramps should go read for this discussion also; and perhaps Justice Antonin Scalia's "God’s Justice and Ours"]

finds less to commend capital punishment than I do. Yet even he does not think that a review of the purposes of punishment is sufficient in itself to justify abolishing the ultimate penalty. The crux of his published argument is found not there, but in four other common objections to the penalty of death:

1. Sometimes innocent people are sentenced to death.
   
   [This is my chief problem with capital punishment, particularly because of ingrained racism (and other -isms) in American culture; and the source of my cramp here]
   
2. Capital punishment whets the lust for revenge rather than satisfying the zeal for true justice.
3. It cheapens the value of life.
4. And it contradicts Christ's teaching to forgive.

The Cardinal calls the first objection "relatively strong," to the second and third he concedes "some probable force," and the fourth he considers "relatively weak." Yet he concludes that "taken together, the four may suffice to tip the scale against the death penalty." Let us revisit these four objections.

[Again, I must send you to the article for Budziszewski's discussion of these four points (in case you do not remember) before you come back for this one.]

The reader is urged to link their own articles in the comments they would wish the folks here to discuss; but try to have them say something substantially different that what Budziszewski and Dulles have said.