Punishment

On the morality of the death penalty: I live in a country (Australia) where the death penalty has long been abolished and is unpopular; particularly mandatory death penalties, say, for example, for people trafficking in illegal drugs over certain quantities. I bring up this example because an Australian citizen was executed in Singapore for exactly that activity. Certainly, I find such laws difficult to justify as consistent, on utilitarian grounds at least. If a person caught in an airport with 0.5 kg of heroin strapped to his body ought to die because that is less-bad than the reasonably presumed consequences to many people would be, were he allowed to live, then surely there is a case for the death penalty for tobacconists or sellers of alcohol. I have no statistics at hand, but I am guessing that the tobacco sold by one tobacconist over several decades would lead to comparable illnesses or numbers of deaths as would the total amount of heroin carried by this particular Australian 'drug mule'. Nonetheless, I cannot escape the thought that there is a reasonable argument for the death penalty (even a mandatory one), only if certain conditions are indisputably met: (1) That a given action X be considered so bad by a society that the society agrees that it simply cannot countenance the occurrence of X. (2) That, it is agreed that unless restrained, a particular agent Y is capable of doing X and that there is a real likelihood that Y will do X. (3) That the only effective way to restrain Y is to kill Y. A rough and ready example of this thinking is that X is torture and murder of an incapacitated victim by pouring strong acid on his face (as also happened in Australia a few years ago, by a paid hit-man: the victim owed someone money); and that Y has previously committed X (which demonstrates capacity), has failed to show any remorse or reformation (is highly likely to commit X in the future) and that the state's legal/prison system cannot guarantee permanent restraint of Y, except through execution. It is pretty clear that such a claim entails various problems: vagueness and appeal to inference to the future, for instance. But as long as we discount simple edicts like 'you shall not kill humans', I cannot see an argument against the principle of this claim. Do you agree?

Comments

When I find myself considering individual cases like the BTK killer and Reinhard Heydrich, I find myself sympathetic to just the sort of argument you present and animated by the feeling that there's really no compelling reason against executing them. But when I think things through more soberly and consider the death penalty as a policy or institution, I find a number of objections compelling.

First, let's look at your principle. You present three necessary conditions that must be met for the death penalty to be morally permissible (which I take you to mean when you say "there is a reasonable argument for"). In other words:

(A) THE DEATH PENALTY IS PERMISSIBLE ONLY IF THE THREE CONDITIONS CAN BE MET. [DP-->3 CONDITIONS]

I take it that this implies the following: if any one of the three conditions can't be met in a particular instance, then (by modus tollens) the death penalty can't be justified in that particular instance; and if any of the three can't ever be met, then the death can never be justified.

It seems to me that condition 3 cannot ever be met. That is, it seems that (at least under normal social conditions) incarceration always offers an alternative to execution. Therefore, (at least under normal social conditions) the death penalty can never be justified.

I do, as you'll notice, leave an escape hatch with the qualifier of "normal social conditions." I understand that social conditions could become so chaotic, dangerous, impoverished, and unstable that condition 3 might conceivably be met. Those circumstances are, however, so rare and improbable that with regard to conditions of public policy they are irrelevant.

It also seems to me that 2 is dubious. "Real likelihood" is of course vague; but here it at least seems to mean that rehabilitation or significant change is not possible. I think it important for various reasons to think that most people can change sufficiently to reduce the probabilty of future objectionable conduct. Those that can't ought to be thought, in general, as ill and therefore not candidates for execution, anyway.

Second, let's consider the implications of principle. My first objection involved conceding that ONLY IF the conditions of your principle can be met that the death penalty would be permissible. I argued simply that the those conditions cannot be met. But notice that even if I'm wrong and the conditions CAN all be met, it doesn't follow that the death penalty is permissible. Notice that necessary conditions are different from sufficient conditions. It's necessary for me to drive my car that these three conditions be met: (1) that the engine receives fuel; (2) that the engine can ignite the fuel and produce internal combustion; and (3) that the moving parts of the engine (the pistons, etc.) can move freely. But notice that even if these three necessary conditions are met, I still might not be able to drive my car--that is, while these three conditions are necessary, they're not sufficient. The car might not have wheels; the drive transmission might be broken; I might not be able to get into the car to start it.

Third, not only is it the case that even if all three of your conditions are met, the death penalty MIGHT NOT be permissible. There are compelling reasons to think that the death penalty actually IS NOT morally permissible. Briefly I'd state these:

1. Its costs. Among them I'd point to the damaging effects of the death penalty on those who perform it, even on those who countenance it, and on the families and dependents of the executed. That is to say, the benefits of eliminating a problematic individual through execution are offset by the harms done to those who execute him or her and those who endorse the execution. In short, putting human beings to death erodes civilization as well as the moral and psychological fabric of society. The financial costs are excessive, as well.

2. The flaws of the judicial system. Even if the death penalty is theoretically sound and even if there are clear cases (like Heydrich or Eichmann) where it is is warranted, the police forces and judicial systems of contemporary nation states are far to unreliable to ensure that only the guilty are punished. Judicial systems are far too influenced by prejudice, irrationality, error, negligence, and incompetence to place peoples lives in their hands. Depriving people of property and liberty is one thing; depriving them of their lives quite another.

3. Mercy. I'd point out that even if the death penalty is permissible, it doesn't follow that it's obligatory (or "mandatory" as you say). The virtues of mercy and compassion militate against its application, even where it's application is permissible and warranted.

4. Totality. As Helen Prejean argues, it is morally perilous to eliminate an entire life because of perhaps a single act in that life. Even the worst of criminals may be capable of contributing some good.

5. Deterrence. There seems little reason to think that the death penalty actually deters crime. It may even produce crime by normalizing violence.

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