In my various defenses of capital punishment (see Crime and Punishment category) I often invoke the principle that the punishment must fit the crime. To my surprise, there are people who confuse this principle, label it PFC, with some barbaric version of the lex talionis, the law of the talion, which could be summed up as 'An eye for an eye, a tooth for a tooth.' The existence of this confusion only goes to show that one can rarely be too clear, especially in a dumbed-down society in which large numbers of people cannot think in moral categories. Recently I received the following 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?
This question shows a confusion of PFC with the 'eye for an eye' principle. Everything I have written on the topic of capital punishment assumes the correctness of Amendment VIII to the magnificent U. S. Constitution: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments imposed." (emphasis added).
The exact extension of 'cruel and unusual punishments' is open to some reasonable debate. But I should hope that we would all agree that drawing and quartering, burning at the stake, crucifixion, the gouging out of eyes, and disembowelment are cruel and unusual. And here in the West we would add to the list the stoning of adulterers, the cutting off the hands of thieves, the flogging of women for receiving a kiss on the cheek from a stranger, genital mutilation, and beheading.
So PFC does not require the state-sanctioned gouging out of the eye of the eye-gouger, or the raping of the rapist, or the torturing of Ted Bundy, or the beheading of the beheader, or the poisoning by anti-freeze of the woman who disposes of her husband via anti-freeze cocktails. ("Try this, sweetie, it's a new margarita recipe I found on the Internet!")
PFC is a principle of proportionality. The idea is that justice demands that the gravity of the punishment match or be proportional to the gravity of the crime. Obviously, a punishment can 'fit' a crime in this sense without the punishment being an act of the same type as that of the crime. Suppose a man rapes a woman, is caught, tried, convicted, and sentenced to a night in jail and a $50 fine. That would be a travesty of justice because of its violation of PFC. The punishment does not fit the crime: it is far too lenient. But sentencing the rapist to death by lethal injection would also violate PFC: the punishment is too stringent.
Now consider the case of the man Clayton Lockett -- a liberal would refer to him as a 'gentleman' -- who brutally raped and murdered a girl, a murder that involved burying her alive. His execution was supposedly 'botched' because ". . . lethal injection has becoming increasingly difficult after European pharmaceutical companies stopped exporting drug compounds used for the death penalty in line with the EU outlawing of executions . . . ." I am tempted to say: if at first you don't succeed, try, try again.
Death is surely the fitting punishment for such a heinous deed. If you deny that, then you are violating PFC.
But if death is the appropriate punishment in a case like this, it does not follow that the miscreant ought to be brutally raped, tortured, and then buried alive. That would be 'cruel and unusual.' Death by firing squad or electric chair would not be cruel or unusual.
Now either you see that or you don't. If you don't, then I pronounce you morally obtuse. You cannot think in moral categories. You do not understand what justice requires. At some point there has to be an appeal to moral intuition, and only some of us have sound moral intuitions.