The death penalty debate takes place on three levels. We argue about whether the death penalty is practical; whether or not it is practical, we discuss whether it is constitutional; and some of the time--less often than we ought--we fight over whether it is moral. Of course, these three very separate levels frequently blur into one another; some of the parties to the debate want to derive a conclusion in one area from a premise in another, effectively arguing that what is practical is moral. Others may be confused about the differences in these arguments, or may find it convenient to blur the distinctions.
For the purpose of clarity: I am only interested, in this essay, in the morality of the death penalty. I do not propose to spend much time discussing its constitutionality or practicality. And for the sake of argument, to highlight the moral arguments even further, I will assume that the death penalty is both constitutional and practical.
The Supreme Court, of course, has repeatedly held that the death penalty is constitutional if applied in a particular way. The debate over the death penalty's constitionality thus squarely confronts the never-ending question of whether constitutional interpretation must narrowly apply the intent of the founders, or whether the Constitution is an expandable and variable rulebook where we can apply portions of the founders' intent to overrule their understandings on matters such as the equality of the races or of the sexes. Those who would argue that the death penalty is unconstitutional must persuade the Court that the Constitution's bar on "cruel and unusual" punishment overrules the founders' perception that death is not cruel and unusual. And here we shade over into the practical argument, adducing evidence of electrocutees catching fire or having to be shocked a second time.
It is worth noting that those who claim the death penalty is unconstitutional are essentially calling for a legislative act which would best come from the Congress--and in practical terms is unlikely to happen any time soon. The Court's propensity to legislate is a fascinating topic in itself, but outside the scope of this essay.
On the practical level, the most important issues, besides cruelty, are whether the death penalty is applied in a discriminatory fashion and whether it has a deterrent effect. The cruelty issue illustrates the dangers of practical arguments about morality; the horrifying barbarity of some botched electrocutions has led the trend towards execution by injection. On the moral level, when we are trying to make fundamental rules to live by, these practicalities should not matter. If the death penalty is immoral, it is so even though execution can be carried out in a quiet, calm and "humane" fashion, in a nondiscriminatory and fair way, and with a significant deterrent effect. Though I have doubts about all three propositions, I will assume their truth for the sake of argument, to throw the moral issues into the sharpest relief possible.
An important task, on the way to the discussion, is to define "immoral". An argument from morality can be presented as an assertion that an act conflicts with a universal law (an "is" argument) or that humans should adopt a rule against that act (an "ought" argument). Regrettably, I do not see evidence in this world for the "is" where morality is concerned. Thus, all my arguments are in favor of a rulebook I would like to see humans adopt.
By arguing in favor of a "should", I free myself from any necessity to regard precedent as significant or to root the answer in history, biology, religion or law. People have killed other people, and states have killed their citizens under color of law, for every conceivable reason since the beginning of time. For the purpose of the moral argument I will be making, it is a matter of complete indifference whether the Old or New Testaments condone or blame these actions, or whether they are justified by our biological nature or by tradition.
I will analyze the morality of the death penalty from a substantive and procedural standpoint. The substantive issue is, is death ever deserved? Assuming that the answer to the first question is Yes, the procedural question becomes, who is entitled to decide when death is deserved, and to apply death? Note that this approach mirrors constitutional discussion, in which some acts are substantively illegal (bills of attainder are specifically prohibited in the Constitution) while others are legal in themselves but become impermissible when a bad process is followed (the death penalty).
Is death ever deserved?
Most people would agree that throughout human history the death penalty has been applied to punish many acts which today we would not regard as deserving death. In the Old Testament, the death penalty is recommended for adultery, homosexuality, and even the rebelliousness of adolescents. In more recent times, people were executed for withcraft and for publishing unauthorized translations of the Bible. Law reviews do not usually contain any illustrations, and I will never forget the experience of flipping open a volume of the Yale Law Review to a photograph of a basketful of human heads hanging from a post. The caption explained that the heads were those of chauffeurs in China, circa 1915, who had been executed for exceeding a speed limit. The photograph illustrated an article on the proportionality of the punishment to the crime.
In some Southern states, the death penalty used to be applied for rape, until the Supreme Court ruled it out of bounds as being disproportionate and therefore "cruel and unusual".
Most debate over particular death sentences centers on whether death is a fair penalty in the particular case. Putting aside those cases in which the defendant is argued to be innocent, the typical dispute is whether death is an appropriate penalty for an unpremeditated murder, a murder by an adolescent, a mentally retarded individual, a jilted lover, etc. Now that it is pretty well established that Julius Rosenberg was an atomic spy, the dispute over his case has settled down to the question of whether death is an appropriate penalty for treason or espionage.
Since the Supreme Court held the death penalty to be unconstitutional as applied, all states which have reintroduced it have turned it into a type of calculus, with aggravating and excusing factors, which presents an "architecture for fairness" of application. However, all human judgments begin in the heart, and the legislation of objective factors merely attempts, with uncertain efficacy, to guide and limit what the heart will do.
A necessary test of any proposition is how it deals with the extreme cases. The proposition that "death is never deserved" thus should be tested against the case of killers like Ted Bundy and John Wayne Gacy--men of some intelligence, independence and means, who killed repeatedly for their own pleasure, enjoyed torturing their victims and making them suffer, and evaded detection or capture for years on end.
Though I believe that the vast majority of the people on death row today do not "deserve" death, I can make no heartfelt argument that Bundy and Gacy did not "deserve" the death penalty. Their intelligence, the careful planning and repetitive nature of their acts, their savagery and the pleasure they took in killing, lead me to feel no remorse about their executions.
An argument from "deserving" may, however, be something of a straw man. There are many adversaries of the death penalty who would not favor the execution even of a Ted Bundy. But it is not always made clear whether the argument against death is substantive or procedural, as these are usually blurred with one another on both the practical and moral levels of discourse. Relatively few of these advocates might agree with the proposition "Ted Bundy does not deserve death" as opposed to the proposition "We may not" (or "should not") "kill Ted Bundy"--the procedural argument.
Should we ever apply the death penalty?
Before embarking on moral issues, there is a practical argument to dispose of that is usually disguised as a moral one. This is the argument from necessity. If we think of Ted Bundy as a kind of shark who will continue to circle around off our beaches and devour people for as long as we let him, wouldn't we kill him in the same way as that shark, to ensure our own safety?
I examined a similar point not long ago in an essay on revolution, where arguments from necessity are common and are usually presented as moral. "Necessity" turns out on close examination to be a very slippery word. If you were starving to death in a lifeboat with an individual weaker than yourself, it might be "necessary" to kill and eat him for your own survival, but it would not be "moral" under most accepted rulebooks. In fact, no action is ever "necessary" because there is at least one other choice, to die rather than commit it, and our rulebooks sometimes do seem to suggest that we die rather than commit these actions. In the lifeboat example, killing the other is murder even when the only other choice is starvation.
Most of the time, when we say something is "necessary", we really mean that it is "highly convenient". But, since our rulebooks frequently require us to do the hardest thing, not the easiest, what we may now more honestly refer to as the argument from convenience is not in any sense a moral argument. If further proof is needed, look at the evidence that is usually brought in to support the argument from convenience: the expense or claimed impossibility of effectively "warehousing" the culprit, the likelihood of his being released and of recidivism. These are all practical, not moral arguments.
In pursuing the moral question, I want to start by quoting some remarkable statements made in defense of the death penalty, to set a tone or create an atmosphere for the rest of the discussion.
Therefore, we conclude that Romans 13:1-7 endorses capital punishment as a valid option for contemporary governments in their exercise of divine wrath against sin.
Capital punishment, then, is the ultimate compliment to the human dignity of both victim and murderer; it implies the most pro-human stance possible.
Human beings are human because they can be held responsible, as animals cannot be. In that Kantian sense the death penalty is a symbolic affirmation of the humanity of both victim and murderer.
These three quotes are taken from an extensive anthology of writing on all sides of the death penalty issue, Hugo Bedau's The Death Penalty in America. The first two are from an essay about the Bible and capital punishment, by H. Wayne House. The third is from an essay about the legality and morality of the death penalty by Ernest van den Haag.
Any attempt to paraphrase the last two quotes is a struggle. "Killing Is Respect"? "Execution Affirms Humanity"? These statements are horrifying to me and seem worthy of the Newspeak of 1984 ("Ignorance is Strength"). In Joseph Conrad's Heart of Darkness, Kurtz, originally a paradigm of humanity, made an internal migration to a philosophy of destruction; on the last page of his report on how to uplift the "natives" he had scrawled "Exterminate all the brutes". House's and van den Haag's belief that we express human respect to a murderer by killing him is beyond Conrad, and beyond Kurtz, entirely. It even is beyond Kafka; at the end of The Trial, when the executioners stab Josef K. to death, he dies murmuring the words, "Like a dog". It apparently did not occur to Kafka to have them reply, "No, like a human being." When behavior affirming humanity is for all intents and purposes indistinguishable from the behavior most grossly denying humanity, we have indeed entered a strange mirror world.
House and van den Haag both illuminate the fact that in America and the world today we have two rulebooks which are highly similar to each other in some of the rules ("Thou shalt not murder") but completely alien in their underlying philosophy. Our moralities may be based either on compassion or prohibition. Hannah Arendt pointed out, similarly, that human society can be perceived to be based either on consent or on force.
All moral discussion boils down to a single question, "What kind of person do you want to be?" I am engaging in a cheap trick here, but at least I am exposing its workings: I quoted House and van den Haag in the hope that some readers, vaguely in favor of the death penalty, would be made uneasy by their words and would ask, "Am I like them?" Because, if you would justify the death penalty on a purely moral level, House and van den Haag are the cream, absolutely the best that religion and moral philosophy have to offer on that side of the issue. You may agree with me that in some fundamental way Ted Bundy "deserved" death, but how do you feel about House's proposition that government should be the instrument of "divine wrath against sin"?
Van den Haag quotes Kant in support of the death penalty. But Kant is also famous for two other statements. He said that people should be regarded as ends, not as means, and (as Bedau points out in his own reply to van den Haag) it is really very hard to argue that we are treating someone as a human being by killing him. The attempt to reconcile Kant with himself, and human dignity with killing, is what leads House and van den Haag to their contorted positions. Most importantly, Kant also coined the concept of the categorical imperative, "Act only on that maxim whereby thou canst at the same time will that it should become a universal law" (Fundamental Principles of the Metaphysic of Morals). This means that you should only do those things which you would be content to have everyone else do. This is a useful guideline, but doesn't it also imply a corrolary, something like "Delegate to others only those things you would be content to do yourself"?
When we kill Ted Bundy, for whom are we killing him? Upon whose authority? In order for the killing to be a moral act, it must be done on God's behalf or on ours. Since most of us would probably today reject the idea that a civil execution is a killing for God (and many of would reject the formulation, "killing for God"), what we are left with is that an execution is a killing made legitimate by our consent. In other words, Ted Bundy was killed for us and by us--as a result of a decision made by a government "of the people, by the people and for the people".
If true, this is an interesting result. Arendt said that government might be based on force or consent. It would be natural to regard all killings by the state as being evidence of the former, not the latter. If the killing of a murderer is actually a by-product of government by consent, then we confront the question of under what circumstances a group of citizens can morally decide the death of another. Can we take a vote in the town hall to kill someone we don't like? Probably not, because this would be an unconstitutional "ex post facto" decision. What if we pass a town ordinance that we will kill people who don't keep their lawns clean or show disrespect for the flag? Here we would probably run into a proportionality problem. In fact, creating a death penalty at the town level would probably not work at all; we only seem to get away with this in larger groups, at the state and federal level. But wait! The only objections we just listed were constitutional, not moral. (We probably could have thought of a few practical objections as well, such as the cost.) If it is moral under our rulebook to decide on the death of an individual in groups of one million, why is it immoral to do so in a duly constituted group of ten?
The value of these absurd scenarios is to shed light on a significant defect of human nature: sometimes we engage in tautological thinking, that something is so because it is so. That we have always accepted that the state kills people is not the same as saying that it is moral under our own rulebooks. We are imperfect and contradictory beings. In the late eighteenth century, we held that "all men are created equal" but also that a slave was worth three-fifths of a man for the purposes of certain other allocations.
Let's return to the reverse categorical imperative: if you are happy to have the state kill Ted Bundy for you, would you be content to do it yourself? For if Ted was killed by all our consent, then it was done by delegation. If it was done by delegation, it was done on our behalf, effectively by us. If it was done by us, we should be willing to take responsibility for it; this means we should be willing to do it ourselves, rather than asking someone else to do it for us. If we are not willing to do it ourselves, then it should not be done.
If we attempt to argue that it is not our act, we are being dishonest; for we are merely hiding behind the attenuation of moral responsibility through bureaucracy (not the first time anyone has done so in this century.)
This argument is a risky one. Someone among you will respond that you would be happy to take the responsibility yourself and put a bullet through Ted Bundy's head. If we should be willing ourselves to do anything that is done for us, then, disturbing as this answer may be, it is the only honest response that may be made by a proponent of the death penalty. One who makes it displays a clarity not shown by H. Wayne House, who must argue away Jesus to prove the death penalty.
I would always rather debate an honest adversary. My question is, if you would kill Ted Bundy yourself, without remorse, what kind of person are you? You may respond that you are well equipped for survival in a cruel and Godless world, where force is paramount.
In evaluating a moral rulebook, the first question to ask is what are the one or two most important underlying values. Jesus reduced the Ten Commandments to a single statement, "Love thy neighbor as thyself." (H. Wayne House writes an interesting gloss on this rule when he says that sometimes the truest expression of this love is to kill your neighbor.) When I was in my twenties, I imagined that the four significant attributes in life were reason, independence, loyalty and justice. In my forties, I know better: humility and compassion are the two most important qualities a human can have, and I only wish to live under a rulebook derived in its entirety from these foundations.
You can resolve almost any case with reference to your underlying principles, if you have picked the right ones. Humility and compassion explain why we should not apply the death penalty.
Humility means knowing our own limitations and flaws and stopping ourselves from assuming that we know absolute truth or are entitled to treat other people as objects or make decisions for them. A humble human would not approve of the death penalty because none of us is so grandiose as to be able to decide the death of another. Note that a good rulebooks is simple and flexible, easy to state yet giving maximum guidance. Jesus' rulebook fits this description. House's and ven den Haag's does not. In their world, we have rules like, "Thou shalt not kill, except that thou may kill the killers," rules which become impossibly confused in the application, because of course, once we have killed we become killers. Anyone who believes that government exists to apply the wrath of God against sin believes that he knows the mind of God. From there, it is not a very big step to being God or at least playing God--which, to put it mildly, displays a real lack of humility.
One of the nicest parables in the New Testament is the story of the adulteress brought before Jesus. Under the Mosaic law, if guilty, she was to be stoned to death. Jesus said: "Let he among you who is without sin, cast the first stone." And no-one did. Here is the clearest possible statement that humility and killing are inconsistent. But House doesn't think so. Jesus was not opposed to the death penalty, nor even to the killing of this particular adulteress, House says. Jesus was only lawyering, raising a procedural objection: the Mosaic law said that both members of the couple should be killed, amd only the woman had been brought before him. In House's universe, Jesus got his client freed on a technicality. Which would you rather live in, the world in which Jesus was a clever lawyer, or the one in which this story is about humility?
I said at the outset that I was going to avoid practical arguments. More properly stated, there is no argument from practicality to morality, any more than there is a road from the "is" to the "ought" (as Hume pointed out.) For example, we frequently mistake technological for moral distinctions: carpet bombing does not seem as reprehensible to most people as shooting people in pits. But the fact that the killers are farther away and do not have to look their victims in the eye is no basis for a moral distinction. Nothing, however, prevents us from arguing in the other direction. Once we have outlined the rulebook we wish to have, we can study its application in the practical world.
Basing our rulebook in large part on humility works quite well in the real world of the death penalty. People are sentenced to death every day on inadequate or perjured evidence; juries are easily persuaded, by the moral absolutism and certainty of the prosecutor, to find that there is no reasonable doubt where there is one. Mumia Abu-Jamal was sentenced to death despite exculpatory eyewitness evidence and a lack of ballistic evidence, in a city where more perjured verdicts have been obtained than anywhere. In Texas, a man was sentenced to death for firing the same bullet that his sister had already been sentenced to life for firing. The sister was not released; the Texas prosecutor, who lacked humility, had no moral problem sentencing two people for firing the same bullet. I wonder he did not charge thirty or a hundred more for the same crime; that was truly a magic bullet.
Compassion gets us to the same conclusion via a different road. I am not mainly concerned here with a compassion for the killers, for many of them--like Ted Bundy--deserve none. It is compassion for ourselves that is of interest here, for what kind of people do we wish to be? While we will never conduct our thousand year experiment, it is possible to look at the people who are closest to the death penalty and see what type of people they are. Whether they are the types most drawn to it or ordinary people affected by it, the amazing callousness and certainty are the same. Lynne Abraham of Philadelphia, the "deadliest DA", says, "No-one will shed a tear. Prison is too good for them. They don't deserve to live." Outside a prison as an execution takes place, people can always be found holding signs saying things like, "Nebraska State 1st Barbecue." "Burn 'em, fry 'em," says a college student in Huntsville, Texas on the eve of an execution. "So what if a few innocent people slip through. That's better than having a lot of guilty people on the street!"
Compassion for the executed is not completely irrelevant. We have executed teenagers, the mentally retarded, psychotic people who were only able to understand what was happening to them because crammed to the gills with medication. And, of course, as any humble person knows, we have executed the innocent, and are doing so today, and will always do so. Because we are imperfect, and have created a system in which the incompetent, the callous, and the dishonest get to decide on and carry out death. We are flawed, and have created a flawed system, and such a system will process and kill innocent people for as long as we let it. Justice Harold Blackmun wrote that "the execution of a person who can show that he is innocent comes perilously close to simple murder."
He was wrong. It is simple murder.
A thought experiment
Since we are debating rulebooks here, I cannot argue that the death penalty violates the fabric of the universe; you can kill and kill until there is nothing left, and the universe will not care. But I don't think you can fairly argue that my belief violates the universal fabric either. In the end we will be left debating the efficacy of alternative worlds. If we both could obtain empty, Earthlike planets, and people them with ten thousand friends, at the end of a thousand years we might compare who had done better: your world with the death penalty, and mine without. (This assumes that we could eliminate the effect of a few million other variables.) You will argue that on my planet, we will be overcome by the murderers, because we are unwilling to defend ourselves against them. I might respond that the people on your world will be measurably more coarse and brutal than the people on mine. In the end, it is quite possible that there will be no objective way to measure the difference between us. Your world may contain an orderly, happy bunch of killers, thriving and prosperous. The most I can say is that I would rather live on my world, with the risks it entails.
The results of our experiment only prove whose idea is more practical, after all. But we define ourselves in terms not only of what we will do, but what we will not. Whatever rulebook we believe in, we steel ourselves to understand that the good is hard to obtain and that frequently we can do better via "immorality" than otherwise. It is easier for a thief to become wealthy than a manual laborer. Even if it is shown from a practical standpoint that the way of nonviolence is the harder way, you have not proved that the violent way is better.
I have written elsewhere that optimism to the point of self-deception is sometimes the way to achieving difficult tasks. This optimism is a third underpinning of nonviolence. Even if the result of our experiment is that we are worse off than you, a thousand years is really such a short time in which to accomplish anything. If enough of us will it for long enough, perhaps we can become nonviolent. It is a no-lose proposition, so long as you do not expect success in a lifetime, for perhaps it will bring something new into being, and if it does not, you can still feel that you lived the right way. A critic would say: "Your little dream is dangerous." Proust said: "If a little dreaming is dangerous, that which cures it is not less dreaming but more."