Wednesday, June 6, 2012

Kramer on the Purgative Rationale for Capital Punishment (Part Two)

(Series Index)

(Part One)

This is the second part in a brief series of posts on Matthew Kramer’s defence of the purgative rationale for the death penalty. The defence can be found in Kramer’s (largely impressive) book The Ethics of Capital Punishment. According to the purgative rationale, death is a justifiable punishment whenever it is needed to purge defiling evil from a moral community. Although the notions of “purgation” and “defiling evil” have religious connotations, Kramer thinks they can be embraced on strictly secular grounds.

The goal of this series is to try to reconstruct Kramer’s argument for the purgative rationale. This is not an easy task since Kramer, despite his lengthy analysis and attempted defence of the rationale, never takes the time out to present it in a valid logical form. This makes his discussion slightly infuriating and is something I’m trying to correct for in this series. I am, however, aware that my summary may fail to do justice to the 150 or so pages that Kramer dedicates to the topic in his book.

Nevertheless, I think most of the necessary groundwork was laid in part one and that I can now proceed to formulate what I take to be the purgative argument for capital punishment. Before I do that, I ask the reader to recall from part one the test that Kramer proposes for any successful defence of the death penalty. The test is as follows:

Kramer's Test: A principle or rationale for the death penalty is successful if and only if it specifies some morally acceptable/desirable end for which death is:
(a) the minimally effective means for securing that end (i.e. it is compatible with the Minimum Invasion Principle); and 
(b) the maximally effective means for securing that end (i.e. it is compatible with the Humane Treatment Principle).

This test effectively demands that death be uniquely specified by the purgative rationale. As it happens Kramer thinks the purgative rationale does this.

Let’s now see why he believes this to be the case. The discussion below is divided into two parts (numbering continues from part one). The first presents the basic argument for the purgative rationale and highlights some of its important features. The second discusses some problems for this argument. This consists of my very preliminary thoughts, and I would be keen to receive comments that either elaborate or reject my concerns, add additional concerns, or, indeed, identify further supports for Kramer’s argument.

3. The Purgative Argument for Capital Punishment
What follows is my reconstruction of Kramer’s basic argument for the purgative rationale. For those who would like to see whether I’m being fair to him (and who have access to a copy of the book) the reconstruction is based on what Kramer says on pgs 186-187 and on pgs 226-230 (mainly the latter). Additionally, I have tried to take into consideration some of what Kramer says in response to his eleven “queries” about the rationale, but I can’t do justice to all of that. Luckily, several of those responses are tangential to the main argument.

The argument begins with the discussion of some paradigmatic cases of defiling evil. I presented these cases in part one. The cases (Richard’s case and Joseph’s case) involve people who carry out (in a culpable manner) depraved and inhumane acts against other human persons. These acts include torture, mutilation, rape and murder, and are typically accompanied by great sadistic pleasure and a sense of empowerment. Kramer’s argument is that people who engage in acts like this (i.e. people like Richard and Joseph) need to be killed in order to restore the moral standing of the communities in which they live. To quote from the man himself:

…each of them has perpetrated grotesque iniquities that besmirch the moral standing of the community in which each of them respectively abides. Though there is not any collective responsibility for the original iniquities themselves (in the absence of any facts that would implicate people who were acting as public officials), there is collective responsibility for the continued existence of each of the perpetrators. Because there is collective responsibility of the latter kind, and because the continued existence of Richard or Joseph defiles any community which bears that responsibility, such a community is under a moral obligation to resort to capital punishment." (pgs 228-229)

We have here the bones of the argument. It works from a general principle about collective responsibilities, through some specific cases of defiling evil, to a conclusion that justifies the imposition of the death penalty. I think that gives us something along the following lines:

  • (1) If the moral order and standing of a community C (relative to humankind) has been besmirched or defiled, then C has a duty to do what is necessary to restore that moral order and standing (the Restoration Principle). 
  • (2) In certain empirically plausible cases (such as Richard’s and Joseph’s) a person (S) can besmirch or defile the moral order and standing of the community in which they abide. 
  • (3) Therefore, in those empirically plausible cases, C has a duty to do whatever is necessary to restore their moral order and standing. 
  • (4) In these empirically plausible cases, the only thing that will restore the moral standing of C is the death of S (the Exclusivity Claim). 
  • (5) Therefore, in empirically plausible cases, C has a duty to kill S in order to restore their moral order and standing.

Three general comments about this argument are appropriate here. First, one thing that might jump out at you is that, starting with premise (2), the argument specifically attempts to apply itself to empirically plausible cases. One might wonder whether this is necessary, since, from a philosophical perspective, sometimes all that matters is whether something is “in principle” justifiable or, conversely, “in principle” unjustifiable. This is true, but Kramer is very explicit about his desire to show that death is appropriate in empirically plausible cases. One can see his point: it would be a hollow victory indeed for the death penalty proponent if they could only show its in principle justification. Hence, the argument is explicitly formulated in such a way that it applies to empirically plausible cases.

Second, and following on from this, it is important to note that those empirically plausible cases will be few and far between. Again, this is something about which Kramer is quite explicit. He does not think that every murder, or every rape or every instance of serious violence will warrant the death penalty. Only those cases involving defilingly evil conduct will merit it. Kramer accepts that the category of defilingly evil conduct is one with a fuzzy boundary, but thinks that vague concepts of this sort are unavoidable in ethics. If one is concerned about borderline cases, one should err on the side of caution and avoid execution. But Kramer argues this does not refute the fact that there are some paradigmatic cases of defiling evil and, if his argument is successful, death would be warranted in those cases.

Third, although the argument presents a relatively strong conclusion — viz. the community has an obligation to execute in certain instances — Kramer argues that this will not always settle the matter since there could be overriding obligations not to implement the death penalty. For instance, in a non-democratic regime, or in a regime without procedural safeguards for defendants, the moral worthiness of death penalty might be overridden by the corruption of the system which administers it. In those cases, the obligation need not be met. But, once again, this does not refute the fact that in at least some systems such overriding concerns will not arise. The last chapter of Kramer’s book is entirely dedicated to addressing this point. I will not have time to cover it here.

With those three comments out of the way, we can proceed to evaluate the argument. As best I can tell, the argument is valid (I formulated it so I would say that) so the key question then is whether its premises are true. It is here that I have some concerns.

4. Some Concerns about the Purgative Argument
The lynchpins of the argument, for me, are premise (1) and premise (4). Premise (1) is a lynchpin because it is what gets the ball rolling. It states a general principle and this general principle claims that communities sometimes have the duty of moral restoration. Without this principle, the conclusion that the death penalty is sometimes obligatory could not be reached. Premise (4) is a lynchpin because it makes a strong claim about the exclusive necessity of the death penalty. Effectively, it says that the death is only thing that will allow a community to discharge its restorative obligation in certain instances.

I have some concerns about both premises. My concerns about premise (1) are perhaps not best labelled “concerns”. They are really more desires for further specification and clarity. My concerns about premise (4) are rather more deserving of the label. I’ll briefly discuss both here. As I said in the intro, I would be keen to hear from readers who have their own thoughts about Kramer’s argument.

Turning then to premise (1), I have three things I would like to know more about. The first is the nature of the duty in question. I’m willing to accept, despite the fact that people have argued at length over this, that communities (as collectives) can have responsibilities. But I think I’d like to know more about the kinds of act types and tokens that these responsibilities mandate. Much has been written about collective responsibility from a backward-looking blame-imposing perspective, but, to my knowledge at least, not so much has been said from a forward-looking liability-imposing perspective. Fortunately, Kramer does say something about the kinds of duties that we expect communities to discharge and how they vary over time. The diagram below depicts his view.

As he sees it, the community owes a duty of protection to its citizens at the time at which the acts of defiling evil takes place, but this duty does not imply that the community can be blamed for every act of defiling evil that takes place. This is because there might be overriding reasons for avoiding excessive surveillance of its citizens. Once a perpetrator of defiling evil has been arrested, the community owes them the duty of ensuring that they receive a fair trial, which includes non-frivolous appeals of any determination of guilt. And finally, once guilt has been determined, the community has the duty to do something with the perpetrator which, in this instance, means that they ought to kill the perpetrator. This specification of the duties is helpful but I think I would to see more on how the specific contents of the duties is determined at each stage. Some discussion of parallel cases, not involving crime and punishment might be helpful on this score. For example, what are the duties owed by a community in the case of a famine or natural disaster, and how do they vary over time?

A second clarification I would like to see relates to the concept of “restoration”. Now, admittedly, Kramer doesn’t use that term himself but I think it is implicit in what he has to say, and I would like to know exactly what restoration of moral order and moral standing consists in. Again, some consideration of parallel cases might be helpful here. Presumably, a natural disaster which leads to great suffering upsets the moral order of a community, but how exactly does one restore the order in this case? And would actual duties of restoration be owed?

Finally, another clarification I’d like to see relates to the objects of the obligation/duty in question. Is the collective duty owed in abstracta or is it owed to specific people, such as the citizens of the community itself. Kramer speaks of the community needing to restore its moral relationship with the rest of humanity, which suggests that the duty is owed to the entirety of humanity, but I think Kramer means this in an abstract sense. Why? Because Kramer excludes the possibility that the duty could be negated or waived by those to whom it is owed. He says that no one has the authority to vacate the death penalty (i.e. no one has the authority of clemency), because the duty is owed to all persons — past, present and future — in virtue of the properties (sentience, capacity to feel pain etc.) that make them morally significant. This suggests to me that it is an abstract duty, not owed to any person or group of persons, but rather owed in virtue of the existence of certain moral values. I find this unproblematic at the individual level but are there any reasons for thinking that things are different at the collective level? Can collectives owe duties in this abstract fashion? Maybe, but I’d like to see some discussion of the issue.

Turning then to premise (4) and the more serious concerns. One thing that’s clear is that this premise is designed to ensures that the purgative rationale passes the test I outlined earlier. Passing this test is crucial since it is the reason why all other rationales for the death penalty fail. Now, Kramer does offer some defence of this premise, but nothing particularly elaborate. This is odd given the burden that this premise bears.

Kramer’s defence, such as it is, consists in considering some alternative punishments and whether they would discharge the burden of restoration. At one point he considers whether a community could restore its standing by exiling or banishing the offender from the community. He argues that although this would create physical distance between the community and the offender, it would not create any normative/moral distance. And it is this normative distance which would be needed. More significantly, he argues that life in prison, in conditions of solitary confinement, would not suffice to restore moral standing. Why? Because it would require that significant resources be expended on the continued existence of the offender, which would fail to remove the moral taint from the community (and also, I presume, would amount to tacit toleration of the defilingly evil person, which again fails to create the requisite normative distance between the community and the morally corrupting individual).

Although it’s nice that Kramer discusses these two alternatives, by themselves they seem insufficient to defend premise (4). Surely there are other alternatives that need to be discussed and repudiated. For instance, at one point, Kramer suggests that those with mental illnesses might be excused/exempted from the death penalty, even when the illness arises after arrest. To me this raises the question: would a community not discharge its duty by artificially inducing a sufficiently serious mental illness? Kramer might respond that this would be inhumane and so would run foul of his test, but this is not obviously so: why is continued biological existence with impaired mental capacity worse than death. In any event, there might be other alternatives that are less obviously inhumane. For instance, selective memory erasure might remove the more noxious elements of an evildoer’s personality, thus restoring moral order but not resulting in death. Similarly, severe behavioural reprogramming might do the trick.

I’m sure replies might be conjured up to these examples. For one thing, they might be deemed empirically implausible and so not relevant to the argument Kramer presents. For another, the expenditure of resources they entail might be deemed too high a price to pay because it would be indicative of a toleration for moral evil, or something along these lines. The problem is that Kramer never discusses these possibilities and so, at least as I read it, one of the crucial premises of his argument is improperly defended.

5. Conclusion
That brings us to the end of this series. To recap, Kramer’s goal is to offer a novel defence of the death penalty, one that overcomes the deficiencies in the traditional rationales. This novel defence consists in the articulation of the purgative rationale for capital punishment. According to this rationale, a community has a duty to kill certain perpetrators of defiling evil in order to restore their moral order and standing.

The supposed virtue of the purgative rationale is that it overcomes the problems associated with the traditional views. These problems are twofold. First, that the traditional rationales do not respect the Minimum Invasion Principle, i.e. they do not show that death is the minimally effective means to some morally desirable end. And second, that the traditional rationales do not respect the Human Treatment Principle, i.e. they also provide support for inhumane and cruel punishments. By contrast, the purgative rationale exclusively picks out death as the only appropriate punishment.

Nevertheless, there are some reasons to be concerned about Kramer’s defence of this rationale. First, the moral principle which he uses to motivate his argument seems underspecified and unsupported. And second, his defence of the exclusivity claim seems incomplete because it fails to consider other alternative forms of punishment. Neither of these concerns is necessarily fatal to Kramer’s enterprise, but they do seem like hurdles to be overcome.

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