A reader e-mails:
I wondered whether I could rebuild the three arguments against capital punishment that you claimed to have demolished in your post:
In 1), you say:
If the wrong person has been executed, that person cannot be restored to life. Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him. So the cases are exactly parallel.
I want to examine the nature of this idea that in both cases above the punishment cannot be reversed or restored in some sense. Some punishments can be reversed or restored in a reasonable sense: if the state wrongly fines me for a parking infringement, that fine can be refunded to me (plus interest/compensation as appropriate) in the event that I prove there was no parking infringement. The cases above are not like that: in the case of imprisonment, the punishment cannot be reversed because there is no sense in which someone can have ten years of their life restored; in the case of execution, the punishment cannot be reversed because there is no way in which the executed can be restored to life. But here's the crucial difference between these two cases and why you are wrong to say that the cases are 'exactly parallel'. In the case of imprisonment, reversal/restoration is impossible because of the nature of the punishment. In the case of execution, reversal/restoration is impossible in principle (because there is no longer any person and therefore no way in which their punishment can be reversed). Us liberals take issue with this a priori rejection of punishment reversal.
I don't think you are making your point as clearly as you might. What you want to say is that, in the case of the unjust imprisonment, some compensation is possible whereas in the case of an unjust execution, no compensation is possible. That is a good point, and I accept it. The parallel is that in both cases something is taken away from the unjustly punished individual, something that cannot be restored: ten years of freedom in the one case, life itself in the other. So there is an exact parallel with respect to what was taken from the individual by the punishment. For in both cases what was taken away cannot be restored. So if you say that the capital penalty is irreversible, and that that is your reason for opposing capital punishment, then I will say that, by parity of reasoning, imprisonment should also be opposed since it too is irreversible. And then you have 'proven too much.'
To be found guilty is not to be guilty. So a reasonable justice system must have built into it mechanisms by which miscarriages of justice (which might be established in the light of new evidence, for example) can be compensated. Capital punishment removes such mechanisms which is partly why I reject it.
An interesting argument. Perhaps it could put as follows:
a. Every just punishment allows for the possibility of rectification in the case of a false conviction.
b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
Ergo
c. No instance of capital punishment is just.
The argument is valid, and we both accept (b). But this is equally valid:
b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
~c. Some instances of capital punishment are just .
Ergo
~a. Some just punishments do not allow for the possibility of rectification in the case of a false conviction.
I support (~c) by invoking the principle that the punishment must fit the crime and that therefore some crimes deserve capital punishment. If this doesn't convince you then I say that that the two arguments just given neutralize each other, in which case we have a stand-off.
Argument 2) I think probably boils down to an impasse. There are clearly punishments which, though they involve the state acting in a way that in other circumstances would be impermissible, society feels are acceptable: imprisonment (which under other circumstances would be kidnap), fines (which under other circumstances would be extortion). But there are other possible punishments which, though (because?) they would involve the state acting in a way that in other circumstances would be impermissible, society feels are unacceptable: the rapist is not raped, the arsonist does not have his house burnt down, the drunk-driver who kills a child does not have his own child killed by state-sanctioned drunk driver. You say capital punishment fits with the first class of punishments. I say the second.
That too is an interesting point. We don't subscribe to the principle of 'an eye for an eye.' Thus we don't gouge out the eye of the eye-gouger; we don't sodomize the sodomizer; set afire the bum-igniter, etc. Your point, I take it, is that if we don't do these things, then we ought not kill the killer. But 'killing' is a generic term that covers a multitude of ways of killing: one can kill by stabbing, poisoning, drowning, choking, dismembering, burying alive, detonating, etc. So, while agreeing that we ought not stab the stabber, dismember the dismemberer, etc., it does not follow that we ought not kill the killer if the killing is done in a humane way.
I've heard it said that lethal injection is "cruel and unusual punishment," but that's risible. Say that, and you've drained the phrase (which occurs in the U. S. Constitution) of all definite meaning.
I'd like to pick up on the deterrence point in argument 3). In order for capital punishment to be an effective deterrent I would argue that would-be criminals must a) fear death and b) be cognizant of the fact that some crimes are capital crimes. I don't mean that they must 'know' that some crimes are capital crimes in some vague, non-immediate sense, like the sense in which I know that three of Wittgenstein's brothers committed suicide - a fact I had not recalled for some time until a moment ago. No, I mean that would-be criminals must be aware of the fact that some crimes are capital crimes in strong sense: a sense in which a fact affects your actions. I would wager that a) is at least contestable: drug lords live under the distinct possiblity of execution, without due process or lethal injection, by rival drug lords but it doesn't seem to affect their actions. And b) is debatable in the sense that some crimes are crimes of passion, crimes committed whilst drunk or high or otherwise in a mentally-altered state ('So we should let them off?!' you say. No, of course not. But capital punishment is unlikely to deter them).
When I said that swift and sure execution would have a deterrent effect I didn't mean for all. The examples you give are plausible. How much deterrent effect? Who knows. But it would be a substantial one.
I love the blog.
Thank you for reading and for the response!
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