This just in from Daniel M.:
Thanks for the recent posts on capital punishment. I acknowledge the distinction you make between lex talionis (LT) and "punishment must fit the crime" (PFC), which you use to rebut this objection from a reader:
If your argument is that the punishment must fit the crime, what about cases of extreme cruelty (Ted Bundy, e.g.)? Should the state have tortured him? Of course not, that would be inhumane. What makes this different from the death penalty?
The idea, I take it, is something like:
(1) If PFC, cruel acts should be punished with cruel acts.
(2) Punishment shouldn't be cruel.
(3) So PFC is wrong (and so can't be used to support the death penalty).
(Another line of thought here might just be: the death penalty is inhumane!)
I can't speak for the reader, but it's not clear to me that this sort of argument depends on conflating PFC with LT. Admittedly, here's one way of supporting (1):
(A) If PFC, the manner of punishment should resemble the crime.
That's a spurious basis for (1), as it confuses PFC with LT, as you explain. But here's my concern: might there be another way of motivating (1), or at least a related claim to the effect that PFC sometimes licenses cruelty in punishment?
Suppose A and B are killers, but that A's crimes are more cruel and depraved than B's. If the gravity of the punishment should match that of the crime, doesn't PFC call for a more severe punishment for A? But suppose the only way the state can make A's punishment more severe than B's is by adding cruelty into the mix. To make this a bit more concrete, suppose B gets death by injection, and that this is fitting. Then by PFC, that punishment would be too lenient for A. To emphasize that this doesn't depend on LT, we might suppose that whatever extra treatment A deserves need not resemble the particular cruel acts in A's crimes.
I'm not endorsing cruelty in punishment, but just trying to articulate a problem or puzzle, as I see it, for PFC.
I agree that that there is a bit of a problem for PFC. Suppose A rapes a woman and then kills her gently to keep her from talking. B rapes a woman and then tortures her to death over a 12-hour period. He crucifies her and whenever she is at the point of passing out, he revives her with smelling salts so that she suffers her agony to the fullest.
Both deserve the death penalty. But if the punishment is to fit the crime, or be proportional to it, then the penalty inflicted on B ought to be more severe than the one inflicted on A. Or so it seems if we go by PFC.
How implement this intuition? Well, crucifying people is out. But death by lethal injection is too lenient. There is death by firing squad, which is slightly worse, and death by hanging which is considerably worse. Gas chamber and 'the chair' are somewhere in the middle. So one approach would be to consider options that are not cruel, but tougher to endure than lethal injection.
Or one could solve the problem by simply stipulating that death by lethal injection shall be punishment enough for all capital crimes, no matter the number of victims or how they are killed.
The latter would be my practical suggestion.
REPLY BY DANIEL M. (8/6):
Thanks! It's indeed tempting to take there to be some "anti-cruelty" moral principle that constrains the implementation of PFC. (It seems to me that this is what you're suggesting.) One proposal you float is allowing for a spectrum of execution penalties, some "tougher to endure" than others, to accommodate the fact that some capital crimes are worse than others - yet while avoiding cruelty. You also float the idea of stipulating that one kind of punishment is "punishment enough" for all capital crimes.
Either proposal seems promising as a way of honoring both PFC and an anti-cruelty principle. However, I think they also weaken, or at least complicate, the PFC-based case for the death penalty. This may be more clear with the second proposal. If some kind of punishment is "punishment enough", that implies that we can't simply use PFC to infer, from someone's deserving to die, that the state is morally required to bring that about. For on this proposal we're granting that PFC doesn't require the state to always give someone the full extent of what he deserves. So it seems something further is needed to take us from PFC to the rightness of the death penalty.
Suppose Ali cuts the throat of only one innocent Christian while Murat cuts the throats of a thousand innocent Christians. My second proposal implies that some non-cruel form of C. P. is punishment enough for both jihadis. This of course is counterintuitive. For if the punishment must be proportional to the crime, then it would intuitively seem that the penalty for the second jihadi ought to be more severe. Intuitively, Ali gets what he deserves whereas Murat gets far less than what he deserves.
On the other hand, we cannot jettison the PFC principle. A just punishment for a crime must correspond both in quality and quantity to the nature and extent of the crime. What exactly this 'correspond' comes to is part of the problem.
One thing to note is that we have already modified PFC to disallow the raping of the rapist, the gouging-out of the the eye of the eye-gouger, the crucifixion of the crucifier, and the burning down of the house of the arsonist. Otherwise PFC is just the lex talionis in its crude "eye for an eye" form. So we have a precedent for modification. We simply take it a step further if we say that the capital punishment of the mass murderer should be no different in quality than the capital punishment of one who commits only one murder.
We must also bear in mind that just punishment must respect both the dignity of the person punished and the dignity of the punishers. Execution by torture degrades both the object and the subject of the execution. C. P. is morally permissible only if it does not degrade the object or the subject of the penal procedure.
If I understand Daniel's question, he is not asking whether C. P. is morally permissible, but how it could be morally obligatory if it is not morally obligatory that Murat the mass murderer in my example receive a worse penalty than Ali the one-time murderer. It is not clear to me why I can't just say that PFC does the trick provided it is hedged by the anti-cruelty/anti-degradation principle.
I have said more than once that justice demands C. P. in certain cases. That implies that C.P. is morally obligatory in certain cases. One could also hold that C. P. is morally permissible but not morally obligatory. But the main battle, I think, is between those who maintain that C. P. is never morally permissible and those who maintain that it is sometimes morally obligatory.