Arguments for the death penalty

The only argument for the death penalty that seems to have any purchase in the contemporary conversation is one that argues by proportionality: some crimes are so bad that they deserve death, or (to speak in slogans) we need the ultimate punishment for the ultimate crime. But this whole line of argumentation seems to beg the question since “the ultimate punishment” clearly has to be the ultimate just punishment, and we can’t help ourselves to the assumption that the penalty is just while we’re trying to establish that it is. Likewise, “the deserved” either is the just or presupposes it. Anything deserved is justly so; and nothing unjust is deserved.

St. Thomas’s argument that the death penalty is needed to defend the body politic seems pretty hard to swallow in the face of modern technology. This seems to be St. John Paul’s critique of the death penalty, at least in modern industrialized nations: while justifiable in principle, its justification requires the peculiar and no longer applicable circumstance that those who would use it have no other reasonable means to assure that a convicted prisoner will never kill again, and saying this in the face of Supermax prisons is not very believable. This argument also undercuts any Scriptural support for the death penalty, since it was clearly limited to times and places in which the circumstances necessary to make the death penalty just still applied.

I write all this reluctantly since I have no moral repugnance toward the death penalty and even have a strong desire to have it applied both more often and more broadly than it is. But I can’t see any reason to do so and so I suppose I need to give up on the idea.

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12 Comments

  1. Michael Bolin said,

    September 6, 2014 at 9:50 pm

    What do you make of the fact that it still seems to happen with some regularity that incarcerated prisoners kill or commit other violent crimes against either other inmates or prison personnel? Should we say (1) that this means only that we should improve prison security, (2) that this is rare enough that it is neither worth the additional expense and difficulty to implement #1 nor justifies the death penalty, (3) that the death penalty should be reserved for such cases, or (4) something else?

    • September 7, 2014 at 8:04 am

      I was thinking about this while I was writing it yesterday but I didn’t do as well working out all the alternatives. I think I was working from a presumption in favor of the technology, e.g. if some politician took to the airwaves to argue that we need to institute capital punishment since the prisons we have do not provide reasonable expectations of safety from criminals who could be convicted of capital crimes, the response would be both skepticism at the claim and shock in the face of the proposed remedy. The spontaneous response to a claim that prisons are unsafe would be either your 1 or 2.

      In a sense I’d prefer the sort of argument you are alluding to in 3, since it would at least recognize a legitimate justification of CP. But I haven’t heard anyone make it publicly yet, and I don’t see the sort of evidence I’d expect to see if it were true (If prisons were that unsafe, I’d expect to have heard about guard shortages, guard killing plots on prison reality TV, widespread reports of terror and fear for ones life in prison, investigative reports of prison chaos, etc.)

      • whitefrozen said,

        September 7, 2014 at 9:41 am

        I don’t mean this to sound snide, but have you done much research into prison conditions? All the things you mention – terror, fear etc – are pretty rampant in prisons.

      • September 7, 2014 at 10:44 am

        If I granted this, it would only be the first of many steps to an argument for CP. I’d then have to go on to show

        1.) The terror inflicted is entirely or principally from those who could be convicted of capital crimes.
        2.) To convict more persons of capital crimes would not lead to more terror (say, by putting more persons in prison with nothing to lose)

        Look, I’m not saying that prison is a place where everyone feels safe. I’m saying that it seems very implausible to argue that prisons fail to supply us with a reasonable expectation of keeping killers from killing again. There seem to be technological and architectural solutions in place to make this so, at least in the contemporary West.

  2. Paul said,

    September 7, 2014 at 8:30 am

    Sir, I’ll grant that it would be difficult to argue that the penalty of death is needed to defend society from its most criminal members, provided that they remain a sufficiently small proportion of the population. I’ll suggest that you need to research conditions in American prisons; many of the things of which you don’t seem to hear are prevalent in high-security institutions. That being said, why do you seem so quick to dismiss the argument from proportion? Why is it problematic to assert that there are many crimes for which death is the only fitting punishment which we can acceptably inflict?

    • September 7, 2014 at 10:46 am

      To your first, see my response to Whitefrozen. To the second: I don’t dismiss the argument from proportion, I argue that it begs the question if used to explain why CP is just. If you’ve got a defense of the argument from proportion against that charge I’m certainly open to hearing it.

      • September 7, 2014 at 11:20 am

        Here’s a follow-up problem. Let’s say that there is some class of criminals C who are so awful and cunning that no prison system can keep them from killing again. We still need to deal with C while they are arrested, waiting trial, on trial, and in prison on appeal. Other societies dealt with this problem by shortening the time between arrest and execution, but I doubt anyone would be willing to do this today. This leaves us still having to develop a prison system that is able to keep them from killing for several years. But as long as we’re developing such a thing, why not use it for the whole punishment?

      • BM said,

        September 7, 2014 at 11:26 am

        As an aside, there is something to be said for death as a deterrence. If we had public hangings for serious crimes, or even public floggings for lesser crimes, it would do more to strike fear into the heart of potential malefactors than putting unknown, unseen criminals in unknown, unseen prisons. (Have you experienced in your own life much sense of deterrence by the justice system per se? I can’t say that I have, other than not wanting to pay a parking ticket. That isn’t to say that prison can’t be or isn’t horrible. Given the violence and prison rape stories we hear about, I assume it’s bad. But the general citizenry has no visceral sense or feeling of this as a threat, which is the whole point of deterrence.)

        To your point, though, why is it difficult to establish proportionality between capital punishment and (violent) crimes that cannot be undone? There is an obvious equality between someone killing someone and being killed for it. Isn’t it completely, transparently clear that, if a person takes away everything from someone (which is what killing them does and more), that it is fair to take everything away from that person (i.e., kill them)? Justice consists in such equalizing of debt.

        And it seems that capital punishment is one case where we can be clear that justice is actually being served. How many years in prison is equal to stealing or arson? Who really knows? Ultimately it’s an arbitrary guess that we could argue about and would never really know if the punishment were quite equal to the crime. But if we know that a person killed someone… well, it’s pretty obvious what punishment balances that debt. There is no uncertainty about it. To be in favor of anything more or less strikes me as being in favor of injustice.

      • Paul said,

        September 7, 2014 at 3:58 pm

        Sir, thank you for your answer. I am still unsure, however, that the argument “the death penalty is proportionate to some crimes, therefore the death penalty is just for those crimes” begs any question. It seems to me that the unstated middle involves the definition of a just punishment — one proportionate to the crime. Either we are disputing the definition of a just punishment or the assertion of proportionality… Or perhaps neither one?

  3. PatrickH said,

    September 7, 2014 at 1:21 pm

    Criminals continue to run their enterprises, including issuing orders for murder, from inside even the strongest Supermax prisons. In Brazil, the imprisoned leaders of PCC ran a quasi-revolt that led to terrorist style attacks in cities throughout Brazil.

  4. theofloinn said,

    September 7, 2014 at 2:44 pm

    There is also the problem of correctly identifying those deserving the death penalty. Is there never a rush to judgment by those eager to close cases, or desire to appear tough by those standing for re-election? How many innocent executions is it worth enduring in exchange for how many guilty ones? And execution, of course, removes the opportunity for repentance.

  5. Patti Day said,

    September 7, 2014 at 3:07 pm

    This past Friday on Catholic Answers Live program on EWTN radio, Archbishop Sample of Portland, Oregon, told a live audience in San Diego about a convicted murderer, who while on death row in a maximum security prison, planned and participated in the murder of another inmate. The Archbishop said that this man was kept in the equivalent of a cage twenty-three hours a day, yet he somehow managed to kill again. The prisoner had twice petitioned corrections officials to carry out his sentence of death by lethal injection rather than to continue to live in prison. The Archbishop met the man when he came to the prison to say Mass for the inmates. Upon seeing the Archbishop, the man threw himself prostrate on floor of his cell and said he was not worthy to be in the sight of the Archbishop. At some later date, the prisoner repented, was baptized, and presumably is in a state of grace.

    There was a smattering of applause from the audience, but most seemed ambivalent.


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