The Ethics of the Death Penalty (Part One)

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As promised last week, this is the first in a series of posts on the ethics of the death penalty. As with the applied ethics posts from earlier in the summer, the series will track closely the essays in the book Contemporary Debates in Applied Ethics . This book is organised around groups of “pro” and “con” articles on a number of controversial ethical issues.

First up for our consideration is Louis Pojman’s pro death penalty article. I’ve been reading around the death penalty issue quite a bit recently, and from what I’ve read it seems like Pojman is one of the leading contemporary defenders of capital punishment.

He makes his case for the death penalty by adopting an uneasy alliance of retributive and consequentialist arguments. I say this alliance is uneasy because, as I will suggest towards the end of my analysis, the arguments can pull in opposite directions. This creates something I will refer to as the “Death Penalty Dilemma”.

More on that later, for now let’s just give Pojman’s arguments the chance to breathe.


1. The Basic Contours of the Death Penalty Debate
We need to get some perspective on the death penalty debate first. The death penalty is a particular kind of punishment that is usually reserved for those who have committed the most heinous crimes (the actual number of “capital offences” can vary from jurisdiction to jurisdiction). Punishment is the intentional infliction of harm (usually with state backing) on another human being, in response for something they have done. Harm is typically deemed to be morally unjustified, but harm done in the name of punishment is different because punishment is thought to be morally justified.

There are two basic positions one can adopt when trying justify punishment. The first is to adopt a retributive justification; the second is to adopt a consequentialist justification. The retributivist claims that harming those who engage in culpable wrongdoing is an intrinsic good, i.e. something that is good in and of itself. The consequentialist claims that harming those who engage is culpable wrongdoing serves any number of morally justifiable ends, such as deterring future wrongdoing, rehabilitating the offender or protecting social order. These justifications have different temporal modes. The retributive justification is backward-looking: it focuses on what the offender actually did and what the most appropriate response to that past action is. The consequentialist justification is forward-looking: it focuses on the future effects of the punishment.

Both types of justification loom large in the death penalty debate. There are retributivists who argue that although other kinds of punishment are appropriate in other cases, death is the only appropriate punishment for certain kinds of wrongdoing. And there are consequentialists who usually argue that killing those who commit certain heinous crimes is the best way to deter those who would have engaged in such criminal activity in the future. That said, there are other consequentialist justifications of the death penalty and these will creep into the discussion.

Anyway, this is just giving you a general picture of the debate and it is illustrated below. Let’s turn now to see what Pojman has to say.

2. The Retributivist Argument
Pojman’s first argument in support of the death penalty is a retributivist one. Somewhat surprisingly, his elaboration of this argument is quite brief. To make up for his brevity, I’m going to spend a little more time outlining the key moves in this argument. I start with a rough-and-ready version:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) The proportionate punishment for murder (and perhaps some other offences) is death.

• (3) Therefore, it is right and proper for those guilty of murder (and perhaps some other offences) to be put to death.

A couple of words about this argument are in order. The first premise is just a statement of the retributivist thesis. I discussed this thesis over the course of two posts last week. The second premise is the key normative claim about the proportionality of the death penalty. Note how death is said to be the proportionate response to “murder (and perhaps some other offences)”. This is significant since, in his article, Pojman makes a partial case for the expansion of the death penalty to cover offences other than murder, including, potentially, white collar crimes. The conclusion (3) then follows straightforwardly enough.

When it comes to the critical evaluation of the retributivist argument, two inter-related questions need to be asked. First, how seriously is the proportionality constraint mentioned in (1) to be taken? And second, is death really the proportionate response to murder (and perhaps some other offences)? These questions are inter-related because how we answer the first question will affect how we answer the second.

So let’s turn first to the seriousness of the proportionality constraint. One way in which to take the proportionality constraint incredibly seriously would be to adopt something akin to the biblical lex talionis . In other words, to punish the perpetrator of every act of wrongdoing by subjecting them to the same act of wrongdoing. Thus, if they steal another’s property, they should have some property stolen from them; if they sexually assault someone, they should themselves be sexually assaulted; and if they kill somebody, they should themselves be killed.

Although this interpretation of the proportionality constraint would support the second premise of the argument, it unravels upon closer inspection. Apart from its sheer impracticality (e.g. what do we do with serial killers — kill them, resuscitate them and then kill them again?), there seem to be a couple of good objections to it. First, it seems to have little intuitive support: I, for one, see little intuitive support for the notion of raping a rapist. Now, I concede intuition is not always a good ground for an argument, but since intuition is one of the primary means of justifying retributivism in the first place, it seems appropriate to raise this objection here. Second, this interpretation of proportionality would seem to warrant the creation of a particularly sadistic and socially destabilising network of punishers. This would undermine the moral foundations of civilisation. Finally, this interpretation could only make the death penalty appropriate for murderers, which is not what Pojman wants. He wants to expand the set of capital offences.

So the lex talionis interpretation of proportionality seems like a non-starter. Nevertheless, we must be careful not to throw the baby out with the bathwater here. There is, after all, something to be said for a proportionality constraint on punishment. I think we could all agree that the shop-lifter does not deserve to be as harshly treated as the serial killer; and that the strength of the punishment ought to be graded in accordance with the gravity of the offence. But saying that says little about the precise form that the punishment should take. And this is key. For the death penalty to be warranted, it must be the case that the proportionality constraint mandates death as the appropriate response to certain forms of wrongdoing. But as we now see, there is no simple way to go from the need for proportionality to the appropriateness of death.

To sum up, in its current form the argument from retributivism is underdeterminative . That is to say: retributivism by itself doesn’t justify the imposition of the death penalty. Something more is needed.


3. Pojman’s Justification of Death
Whether Pojman is aware of this problem is unclear. I suspect he is since he is well-versed in this debate and since the objection outlined above is taken largely from the writings of Hugo Adam Bedau (an old adversary of Pojman’s on this topic). But he doesn’t address it directly in the essay I’m looking at here.

He does, however, say something that could be construed as justifying death over other forms of punishment. Let me quote from the article:

Human beings have dignity as self-conscious rational agents who are able to act morally. One could maintain that it is precisely their moral goodness or innocence that bestows dignity and a right to life on them. Intentionally taking the life of an innocent human being is so evil that the perpetrator forfeits his own right to life. He or she deserves to die (p. 108).

Now there are ambiguities in this passage, but I think it can be interpreted as making the following argument in support of premise (2):

• (4) Human beings only possess a right to life in virtue of their dignity.

• (5) Whosoever loses their dignity, loses the right to life (corollary of 4).

• (6) If a person intentionally kills another, they lose their dignity.

• (7) Therefore, if a person intentionally kills another, they lose their right to life.

• (8) Therefore, if a person intentionally kills another, they deserve to die.

This can then be carried on to support premise (2).

There are several questionable steps in this argument. First off, it isn't clear that dignity is what generates the right to life. Dignity is a fuzzy, much-disputed concept at the best of times. When it is reined in and defined explicitly in terms of self-consciousness and rationality (as Pojman does) things are better, but then this definition raises further problems. In particular, it casts (6) into serious doubt. After all, it doesn’t seem likely that by intentionally killing another person, you thereby lose your capacity for self-consciousness and rationality. Also, there seems to be an unwarranted jump from (7) to (8). Look to the abortion debate as a guide. Defenders of abortion will usually argue that the foetus lacks a right to life, but very few (if any) would then argue that this lack of a right to life implies that the foetus deserves to die. At most, they’d say it is not impermissible to kill it. Perhaps those more well-versed in the logic of rights could set me straight about this: would the loss of the right to life imply a duty to kill?

If we take these problems seriously, and I think we must, Pojman’s use of the retributive argument is unpersuasive, at best. Perhaps he’ll have better luck with the deterrence argument. We’ll see in part two.