For a discussion of capital punishment, with no thinker is there a better place to begin than Ernest van den Haag. It is with justice that the latter\u2019s seminal analysis of this topic is a staple of textbooks in college ethics courses nationwide: the author addresses the thicket of issues that are at stake in the debate over \u201cthe ultimate\u201d penalty.<\/p>\n
The Argument from the Mal-distribution of Capital Punishment<\/strong><\/p>\n Van den Haag is a proponent of capital punishment. Yet he doesn\u2019t just argue for his position; he seeks to meet the objections that are typically raised against it.\u00a0 And the first such objection to which he speaks is what we may call the argument from the distribution<\/em> of the death penalty.<\/p>\n The death penalty, opponents contend, should be abolished because of the capricious or arbitrary manner in which it is administered. According to this line of reasoning, that, say, black and poor murderers are put to death more frequently than are white and wealthy murderers, or that one and the same crime may or may not be a capital offense depending on the location in which it is committed, prove that the death penalty is unequally applied and, hence, unjust.<\/p>\n Van den Haag charges the advocates of this view of confusing two fundamentally distinct considerations, what we may summarily identify as the considerations of equality <\/em>and justice. <\/em> He remarks: \u201cIf capital punishment is immoral in se, <\/em>no distribution among the guilty could make it moral.\u00a0 If capital punishment is moral, no distribution would make it immoral.\u00a0 Improper distribution cannot affect the quality of what is distributed, be it punishments or rewards.\u201d<\/p>\n In other words, whether there is an \u201cequal\u201d share of this or that is morally irrelevant to the goodness or badness, rightness or wrongness\u2014i.e. the \u201cjustice\u201d\u2014of the thing in question. Regarding the death penalty, the point is this: while it may be more desirable <\/em>that, say, everyone who deserves it receives it, those who are deservedly executed <\/em>suffer no injustice. <\/em> The only morally relevant question is whether the person in question deserves <\/em>to be put to death.<\/p>\n Think about it: Suppose that students Jones and Smith are equally deserving of an \u201cA.\u201d That only Jones received this grade surely would go no distance toward establishing that an injustice had been done to him. <\/em>Jones, after all, got what he deserved.<\/p>\n Similarly, van den Haag reasons, as long as a person deserves to be executed, this is all that counts from the standpoint of justice. It matters not that others who should have been executed failed to get their just desserts.<\/p>\n In short, \u201cequality,\u201d van den Haag concludes, \u201cseems morally less important than justice.\u201d He adds that \u201cjustice is independent of distributional inequalities.\u201d<\/p>\n Response<\/em><\/p>\n While it seems true enough that the character of a thing is not determined by its distribution, it also seems true enough that incorrigible <\/em>and severe <\/em>distributional inequalities could warrant rejection of an activity.<\/p>\n Take, for instance, a campaign finance law that\u2019s designed to prevent the wealthy from exerting a disproportionately large influence in politics. Yet this same law, (ostensibly) designed to rectify one inequality\u2014inequality between the wealthy and non-wealthy donors\u2014<\/em>gives rise to another inequality, the inequality between incumbents\u2014those who are guilty of \u201chording\u201d their offices\u2014and challengers.\u00a0 Assuming for the moment that there should <\/em>be a limit to what citizens can legally contribute to the coffers of their candidates of choice, prudence, <\/em>if not justice, <\/em>may still dictate the abolition of this law.<\/p>\n In like vein, a sufficiently intractable distributional inequality vis-\u00e0-vis the death penalty, while failing singularly to establish its injustice, <\/em>might still, nevertheless, call for its abolition.<\/p>\n \u00a0<\/em><\/p>\n Argument from Miscarriages of Justice<\/strong><\/p>\n Opponents of capital punishment claim that it should be abolished because innocents <\/em>can be and have been executed.\u00a0 The premise, though, van den Haag replies, does not support the conclusion.<\/p>\n For one, there are all sorts of activities\u2014trucking, lighting, and construction, are examples that he supplies\u2014that result in loss of innocent life, and yet we preserve these activities because we recognize (or at least believe) that their moral and material advantages outweigh their costs. We could reduce the number of people killed in car accidents each year to zero if we abolished cars.\u00a0 That we have not eliminated automobiles means that we are willing to pay the cost in the loss of innocent lives for the benefits we will reap from driving.<\/p>\n In the case of capital punishment, the risk that innocents will be executed is the cost we are willing to pay for \u201cthe moral benefits and the usefulness of doing justice.\u201d<\/p>\n A second consideration that van den Haag invokes is this: If the death penalty is unjust in itself, as opponents of capital punishment usually hold, then whether it ever <\/em>miscarries is utterly beside the point.<\/p>\n \u00a0<\/em><\/p>\n Response<\/em><\/p>\n Van den Haag\u2019s last remark is unanswerable: if a person thinks that the death penalty is unjust irrespectively of whether the person being executed is guilty or not, then it is<\/em> immaterial if that person is innocent.\u00a0 In fact, capital punishment itself <\/em>would be the miscarriage of justice.<\/p>\n However, as I suggested before, van den Haag seems to imply that all <\/em>opposition to the death penalty is motivated by a belief in its injustice. <\/em>This, though, is not necessarily the case: one can desire the abolition <\/em>of capital punishment while conceding that murderers do indeed deserve death.<\/p>\n To put it another way, what\u2019s morally<\/em> desirable and what\u2019s legally<\/em> desirable aren\u2019t necessarily one and the same.<\/p>\n For instance, while one can hold that some kind of punishment is indeed befitting adulterers, and maybe even hold that, ideally, <\/em>the government should be authorized to administer this punishment, one may nonetheless oppose vehemently actual <\/em>laws aimed at punishing adulterers.\u00a0 That is, if there was a law against adultery, I could demand its abolition even while conceding that the punishment is <\/em>appropriate to the crime.<\/p>\n To paraphrase no less a figure than Thomas Aquinas, a society that set for itself the goal of criminalizing all evils would give rise to evils greater than those it was determined to extirpate.<\/p>\n Van den Haag also analogizes the death penalty with other hazardous activities that we nevertheless permit. Are these, though, genuinely strong analogies? In the context of, say, trucking, people lose their lives, it is true, but these deaths are wholly<\/em> unintentional. No one would think to say otherwise.\u00a0 In the context of capital punishment, however, it is nothing more or less than the death of the condemned person that is intended. And it is intended, not in the heat of the moment or in self-defensive, but in the most carefully calculated of ways.<\/p>\n Might not this distinction be of at least some moral relevance? At any rate, it is entitled to at least a bit more attention than what van den Haag pays to it.<\/p>\n Argument from Deterrence<\/strong><\/p>\n Critics of capital punishment typically assert that there is no proof that it is adeterrent to murder.\u00a0 Van den Haag acknowledges this inconclusiveness while noting that this works both ways, making it impossible for proponents and <\/em>opponents of the death penalty to avoid essentially gambling on their respective views: partisans of both sorts will have to make a trade-off in light of this uncertainty.<\/p>\n And what is at stake? According to van den Haag, the choice to support or oppose the death penalty for reasons pertaining to deterrence boils down to the choice to value either the lives of murderers or those of their potential victims.<\/p>\n In van den Haag\u2019s estimation, opponents \u201cappear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of innocent victims who might be spared by deterring prospective murderers.\u201d Even if there is only the possibility <\/em>that innocent lives will be spared a murderous death courtesy of the execution of a convicted murderer, the latter (all things being equal) would have been worth it.\u00a0 \u201cSurely,\u201d van den Haag writes, \u201cthe criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.\u201d<\/p>\n In any event, although statistically <\/em>the evidence for the deterrent effect of capital punishment is inconclusive, van den Haag thinks that, intuitively, <\/em>the promise of death tends to deter more so than does the promise of life imprisonment.\u00a0 Upon quoting James Fitzjames Stephen, he asserts that our shared intuition that murder is the most egregious of crimes is at least in part the product of the fact that murder has generally been punished more severely than has any other crime.<\/p>\n Response<\/em><\/p>\n The mere possibility<\/em> that some innocent lives will be spared may not be a morally compelling reason for capital punishment\u2014the act, mind you, of deliberately killing<\/em> someone who is powerless to fight back.\u00a0 Some could argue that the potential moral benefits in such a situation simply don\u2019t outweigh the costs.<\/p>\n Costs<\/strong><\/p>\n The execution of a convict is more expensive than is the penalty of life imprisonment, it is often said. Van den Haag is not convinced by this claim for two reasons.<\/p>\n First, such studies as are often cited to substantiate it are \u201cflawed\u201d for implying \u201cthat life prisoners will generate no judicial costs during their imprisonment.\u201d<\/p>\n Secondly, monetary expenses can only be of secondary importance when compared to the moral imperative of meting out justice.<\/p>\n Response<\/em><\/p>\n In point of fact, while we\u2019d like to think otherwise, none of us, in our daily lives, ascribe categorical priority to justice. When \u201cdoing justice\u201d becomes prohibitively costly, we don\u2019t \u201cdo it.\u201d If <\/em>it was the case that executing convicted murderers were an outrageously expensive exercise, if, in other words, it became infeasible to continue this activity, then it would be imprudent (and maybe even impossible) to do so. Changes of some kind would need to be made.<\/p>\n The point is that van den Haag appears here to be resorting moralistic rhetoric when he implies that if the conflict boils down to a contest between \u201cmoney\u201d and \u201cjustice,\u201d the latter must always prevail.<\/p>\n Relative Suffering<\/strong><\/p>\n Others contend that capital punishment violates the principle of \u201clex talionis\u201d which demands that a punishment be proportionate to the crime: the executed murderer, from this perspective, suffers more <\/em>than his victim.<\/p>\n Van den Haag answers that whether the murderer suffers more than his victim is anyone\u2019s guess. Ultimately, however, this is irrelevant, for the murderer deserves his suffering; his victim most assuredly did not.<\/p>\n Moreover, this argument from the principle of \u201clex talionis\u201d reflects a fundamental misunderstanding of the character and purpose of this principle. The latter is a principle of retribution, <\/em>i.e. a social <\/em>principle, meant to usurp the role that private <\/em>or personal revenge <\/em>had historically played.\u00a0 Retribution has nothing to do with vengeance against an assailant or compensation for a victim.\u00a0 Rather, its function is to \u201cvindicate the law and the social order undermined by the crime.\u201d<\/p>\n Brutalization<\/strong><\/p>\n Opponents of the death penalty charge that through its practice, we collectively legitimize murder.<\/p>\n If this is true, van den Haag replies, this would mean that through imprisonment, we legitimize kidnapping, and through fines, we legitimize robbery. Of course, no one would think to make these<\/em> assertions, for it is widely recognized that material equivalence is not synonymous with moral equivalence.\u00a0 As van den Haag puts it: \u201cThe relevant difference [between murder and execution, kidnapping and imprisonment] is not physical, but social.\u201d<\/p>\n Murder and kidnapping are \u201cunlawful and undeserved,\u201d while executions and imprisonment are \u201clawful and deserved punishment[s] for\u2026unlawful act[s].\u201d<\/p>\n Response<\/em><\/p>\n Executions are legal (in some places), it is true, but whether they should <\/em>be legal is what\u2019s in question.\u00a0 Similarly, whether they are deserved is also questionable.<\/p>\n Justice<\/strong><\/p>\n Punishment, considered as an institutional or societal practice, exists for the sake of deterring crime. But we punish only those individuals who deserve <\/em>to be punished.<\/p>\n Punishment, then, is, or at least should be, retributive.<\/em><\/p>\n When we consider punishment from the standpoint of its retributive character, van den Haag claims, there is \u201ca sense\u201d in which \u201cthe infliction of legal punishment on a guilty person cannot unjust.\u201d In committing a crime, the criminal voluntarily <\/em>assumes the risk of punishment in the event that he is apprehended and convicted of his crime.<\/p>\n There is a sense, then, in which the criminal can be said to have chosen <\/em>his punishment.<\/p>\n Thus, van den Haag concludes, \u201cthe death penalty cannot be unjust to the guilty criminal.\u201d<\/p>\n Response<\/em><\/p>\n Van den Haag equivocates on the word \u201cjustice.\u201d That a penalty happens to be affixed to a crime does not mean that it ought <\/em>to be so.\u00a0 For example, in the antebellum South, slaves who attempted escaping to the North risked suffering harsh penalties in the event that their plans failed.\u00a0 However, if such laws were immoral, if they never should have been laws to begin with, then, morally speaking, it most certainly was unjust to treat slaves as criminals for trying to secure their own freedom.<\/p>\n Those critics of capital punishment whom van den Haag addresses regard it as just as legal, and just as immoral, as punishments that were once meted out to slaves who tried but failed to secure their liberty.<\/p>\n Excess<\/strong><\/p>\n To those who object that capital punishment is always <\/em>excessive, regardless of the crime or crimes to which it is a response, van den Haag replies that since this position can neither be confirmed nor refuted, it is an \u201carticle of faith.\u201d<\/p>\n Alternatively, objectors allege that everyone has a \u201cnatural right\u201d to life that the death penalty violates.<\/p>\n On this score, Van den Haag, however, agrees with the 18th<\/sup> century philosophy Jeremy Bentham.\u00a0 The latter referred to \u201cnatural rights\u201d as \u201cnonsense on stilts.\u201d<\/p>\n \u00a0<\/em><\/p>\n \u00a0<\/em><\/p>\n Response<\/em><\/p>\n If, as van den Haag says, the notion that the death penalty is intrinsically excessive is just an \u201carticle of faith\u201d that, as such, can\u2019t be reasoned with, then can the same thing be said for his idea that the death penalty is (at least almost) always just for the crime of murder?<\/p>\n For that matter, doesn\u2019t life generally, and morality specifically, demand an exercise of faith, faith that our thoughts resemble reality, that we can have knowledge, that there really is a difference between virtue and vice, rightness and wrongness, good and evil?<\/p>\n Finally, even if an idea can be said to be the function of faith, why assume that this automatically immunizes it against reason? After all, some\u2014many\u2014of the most brilliant thinkers have been people of faith who have insisted that genuine faith is reasonable<\/em> faith.<\/p>\n Degradation<\/strong><\/p>\n Some, like former Supreme Court Justice William Brennan, argue that capital punishment undermines \u201chuman dignity\u201d and \u201cthe sanctity of life\u201d by treating \u201c\u2018members of the human race as nonhumans, as objects to be toyed with and discarded [.]\u201d<\/p>\n Van den Haag replies in two ways:<\/p>\n First, such bright minds and fine ethicists as Kant and Hegel have insisted that, far from degrading the person of the executed, the death penalty actually affirms <\/em>his personhood by honoring his choices, his standing as a rational agent who, in a real sense, chose his punishment.\u00a0 As a side note, van den Haag remarks that life imprisonment is more degrading of a person\u2019s dignity insofar as the person is forced to endure an existence deprived of all autonomy.<\/p>\n Secondly, he thinks that, in one crucial respect\u2014and the only respect that really counts\u2014the state of the executed criminal is <\/em>indeed degraded.\u00a0 Yet the degradation is self-<\/em>inflicted.\u00a0 The execution teaches the murderer \u201cthat his fellow men have found him unworthy of living; that because he has murdered, he is being expelled from the community of the living.\u201d<\/p>\n The execution, that is, doesn\u2019t cause <\/em>the degradation of the murderer.\u00a0 It is the effect <\/em>of the degradation that he inflicted upon himself.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" For a discussion of capital punishment, with no thinker is there a better place to begin than Ernest van den Haag. It is with justice that the latter\u2019s seminal analysis of this topic is a staple of textbooks in college ethics courses nationwide: the author addresses the thicket of issues that are at stake in…<\/p>\n","protected":false},"author":399,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1167","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\n