Bernie Roddy writes:

"A History of Thought on the Death Penalty"

Bernie Roddy

Debates about the death penalty can address the fairness of its administration or the moral consequences of the likelihood that innocent people are executed, but the central issue from a theoretical point of view seems to be the sense in which death is an appropriate punishment for the guilty.

We know that what constitutes an appropriate response to the most serious crimes has changed dramatically over time, and that it has not always seemed wrong to make even the family of the guilty suffer the punishment he endures. But while a long torturous death at one time seemed to be the only manner in which certain debts could be paid, a simple termination of life as in active euthanasia now strike many as the minimum penalty for some offences.

We can also reasonably say that the penalty may not be one that is imposed by the victims or the family of the victims, but is imposed by society at large, there being a threat to the social order as much as a loss suffered by the individual. Thus, it would not necessarily be correct to consider the execution a form of restitution. Because the debt is not paid to those who suffered the loss, or not to them alone, the power to grant mercy for the accused, it may be argued, is justly denied the family of the victim.In consequence, little progress seems possible toward understanding this penalty without reflection on the religious basis of the idea of paying a debt to society by dying, and on the importance of the public exercise of sovereign power.

          It should be said at the outset that we are not concerned with an objective truth on the moral rightness of capital punishment. Although the concept of objective truth in morality may be protected from philosophical refutation, its value is reduced to zero where the issue turns on whether our moral sense is corrupted. I think Nietzsche has done the most to move “beyond good and evil” here, simply by taking for granted that there are no moral values and carrying this assumption as far as it can take him. Even if there is no refutation of the idea that there are universal values, we can still say that there is nothing else to do but modestly draw on our own culture, to investigate the psychology of our philosophical tradition bearing on state-sanctioned execution. And there being nowhere to go other than into an investigation of how death can seem to constitute appropriate payment, we have no choice but to introduce into the discussion those terms from our religious heritage responsible for the development of that moral sense that would demand death, terms that have been effectively banned from secular debate to the detriment of the abolitionist cause.

          In Cur Deus Homo Saint Anselm responds to several objections to the idea that God might sacrifice an innocent Christ to atone for the guilty. While the function of the crucifixion can be studied along with other cases of human sacrifice, the answers Anselm provides can also be applied to the question why forgiveness for capital murder might strike the devout as unseemly. The particular question addressed in book one of Cur Deus Homo is why compassion would not be a more appropriate response from God toward the guilty, why Christ's death was necessary given God's mercy. On the assumption that this death of a savior is not available to us, Anselm says, we would be in the position of owing God while being unable to pay. But why not have the debt forgiven? Given God’s nature, why is it not possible for him to forgive? The answer is that although God commands humans to forgive such debts, it would not be fitting for God himself to forgive them, the liberty to do such a thing being inconsistent with his dignity. To forgive is undignified when the person of the ruler has been denigrated, Anselm says. Moreover, sin requires either satisfaction or punishment. That is, it calls for repayment or the suffering of punishment above mere repayment. Yet even in the case of satisfaction (returning what has been taken) there is no possibility of going unpunished, because mere restoration of God's honor does not distinguish the guilty from the innocent, something required for the order God intends to establish in the universe, according to Anselm. The first priority, then, is the establishment of the divine plan. Restitution being insufficient if even possible, there would still be a need to pay for defrauding God and failing to bring one's self completely under his will.

          It is important to remind ourselves that the debt is to be paid with one's own death. All human life belongs to God and has been freely yielded to the devil. As a result, we begin life in sin for which only death is just compensation.
Now the victory ought to be of this kind, that, as in strength and "immortal vigor, he freely yielded to the devil to sin, and on this account justly incurred the penalty of death; so, in his weakness and mortality, which he had brought upon himself, he should conquer the devil by the pain of death, while wholly avoiding sin." (231 Such ideas may seem to support capital punishment in so far as the sinner has no choice but to die. However, the death must be of one who is pure. The sinner, by sinning, has made satisfaction impossible even by his own death. This makes Christ's death necessary, and not just for capital murderers. Anselm says that vengeance is not appropriate for humans, since both the person to be avenged and the person to satisfy him are equally servants of God. For a human to take revenge is for a human to arrogantly assume the judgment that is a peculiar right of God. This idea also weighs against the suitability of execution. The saving detail in support of it is the function the state play’s in bringing about God’s plan.

          When does suffering enter the picture? We tend to think of conviction as founded in judicial procedures inspired by enlightenment thought and upholding the value of a vigorous defense. We tend to think that suffering has always been legitimate only after conviction. But we know that confession was once not so much voluntary testimony as an examination to be endured. Less freely given than forcefully extracted, its juridical value rested on the degree of resistance found in the suspect. Defendants who withstood the tortures without confessing were found innocent, those who succumbed to the torments revealed their guilt. The relatively recent manifestations of this use of "confession" exposes it as no passing barbarism. (Skolnick) Moreover, moral responsibility is not so closely tied to punishment's history as we often suppose. This is more easily appreciated if we acknowledge the significant similarities of expiatory sacrifice and criminal trials. The variety of things that have received death sentences include pigs, horses, locust, and weevils. (Evans) Ritual sacrifice in early societies had among its functions to rid people or places of evil. Although it is true that the victim was often required to be pure as in the Christian tradition, the execution of animals during the Middle Ages after trials that closely resemble our own suggests an affinity between the conjurer's art and that of a trial lawyer or judge. As a form of exorcism and one that requires adherence to sacrosanct proceedings, criminal trials take on new significance by this comparison, particularly where the question of guilt is not the primary one and the degree of evil of grave concern to all. It is at these times that death strikes some of us as an appropriate response.

          In addition, the suffering wrought through expiatory sacrifice had little to do with any presumed responsibility of the victim for the misfortune. Foucault has argued that punishment shifted over the past few centuries from a spectral manifestation of sovereignty to a hidden disciplinary system of self-government. If this historical process has involved, as he suggests, a move from pure applications of penal law toward procedures of identification and appropriation of a class of delinquents, this should not obscure the role that similarly important identities played in earlier systems. In place of today's responsible, at-risk criminal element, with its identification markers of race and class, we had the demoniacally possessed, the mad, the witch. Instead of surveillance and psychiatry, there was exorcism and redemption. And just as it is inappropriate in relation to a population of the possessed, responsibility should not be given the central role we tend to give it today when we think about the guilty in capital murder cases, at least not where our actual practice is at issue. Being possessed called for treatment that we would today qualify as punishment of the most severe kind, but the body that suffered was not closely tied to the being held responsible. The future of the excommunicated would often include additional corporeal appearances in pigs, ravens, or flies, and its evacuation from the body of a man or woman, often accomplished through various tortures, represented less the condemnation of the human who previously was the sole occupant of that body than an ongoing battle with another, unseen world. As a natural force of evil, such a spirit was not thought responsive to human injunctions, and its removal bore little resemblance to the lessons we commonly take punishments to be. It is in this vicinity, I believe, that we will find the resources to understand the function of death in criminal proceedings today where death is frequently meted out, and where considerations about “correction” are quite irrelevant.

          Toward such comprehension we do well to compare Kant to Nietzsche. For Kant "whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself." He takes seriously factors such as honor, shame, and insult - problems of exchange value in relation to mistreatments. Of two people responsible for a capital offense one of whom acted in self-interest while the other acted from duty, the one who acted from duty would prefer death to life in prison, he says, whereas the self-interested would choose to live in shame. As a result, execution honors the man of principle and penalizes the scoundrel, while life in prison is harsh for the honorable and respects the unworthy. Thus, execution is appropriate for both. Moreover, an executive decree can spare the condemned, but only to preserve the sovereign, and this at the expense of grave injustice to the victim of the offense. But complicating these assertions are several problem cases Kant mentions, including that of a woman pregnant out of wedlock who kills her newborn, and the case of someone who kills another in a duel. The original rule is defended against these admissible killings by means of a distinction between moral law and its legislation or enforcement, and the preservation of honor is to be encouraged by law, even if technically the penalty is death. Reflecting on these claims, it is difficult to see any grounds for accepting or rejecting them other than the bare inclination to do so. Of course, Kant thinks that going up in abstraction provides such grounds, so we get the requirement that one treat humanity as an end, and the like. To treat as an end is to treat as a rational decision-maker, applying the same universal law to the agent as he applies to others, but only if we take his decision to be made manifest in what he has done, not in any reflections he now engages in.

          If we say in Nietzschian manner that moral feeling is the engine for moral argument, that inclinations and aversions are imitated in childhood after which a rational accounting for them is sought, we would likely invite the criticisms raised against subjectivism and emotivism in standard ethical theory. Suppose we adopt the view that there are no moral properties and then try to account for why we use moral language as if there were by providing reinterpretations of statements such as "abortion is wrong," translations without remainder that do not commit us to the existence of moral properties. Such is the subjectivist and emotivist strategy. Here objections typically consist in appealing to pre-theoretical convictions, such as that there is moral disagreement about facts and not a bare competition of wills. But lacking any serious investigation into these inclinations, there is nothing that speaks either in favor of or against everyday language use, and therefore no basis for accepting or rejecting the rulings motivated by everyday speech. It is therefore a surreptitious defense of moral prejudice that would raise as objections to our nihilism the unacceptable consequences following from the theory given our naive language use. I conclude that we are free to accept Nietzsche's lead. There were no decisive means for rejecting the objective theory of truth, so it remains as a possibility, though of little use. I maintain that there are also no means for rejecting a theory that resists the evidential value of everyday intuitions.

          Nietzsche suggests that a relationship between guilt and punishment is continually reaffirmed by repeated popular assertions of observations as to this causal connection in what amounts to the application of an incredibly crude and unscientific theory. But because the pleasure of cruelty was once enjoyed by both the community and its gods, voluntary suffering has acquired its own value, "not, to repeat it again and again, as a means of discipline, of self-control, of satisfying the desire of individual happiness - but as a virtue which will put the community in good odour with the evil gods and which steams up to them like a perpetual propitiary sacrifice on the altar." The moral consequence of suffering that is supposed to rightfully follow a criminal act as its punishment, once a "free supplement" of God's, an outcome not so much a consequence as a separately conjured act, was previously solicited through practices that were completely distinct from those of the "cause" of the penalty. Harkening back to St. Anselm's account of our need for Christ, which is certainly the harbinger of Kant's conception of retribution, Nietzsche decries this causal law that would count punishment an effect, institutionalize the ephemeral satisfaction of anger into an enduring "perpetual vengeance," and insist that our very existence count as punishment, all of which makes it appear "as though the education of the human race had hitherto been directed by the fantasies of jailers and hangmen!" (14) We need to get beyond responsibility.

          There is, of course, a popular basis for punishment that is supposed to be immune from appeals to such religious communication with another, vindictive world. The prisoner's dilemma motivates the idea of a social contract to account for the justification of punishment. This now traditional dilemma begins with the assumption that the "state of nature" is extremely unpleasant and its avoidance obliges obedience to any law handed down within a just social arrangement. Following Socrates' example, even an unjust law that demands death ought to be obeyed because the protection and benefits of law are made possible only through a commitment to uphold the law, a commitment obtained from others who will obey only if we commit to do so. Of course, the condition for entering into such an agreement is that such compromises in self-interest offer the most rational way to maximize self-interest in society, and so, despite Socrates' acceptance of his own execution, the theory does not justify giving up one's life as a duty under the contract. No social contract is rationally accepted if it calls for the sacrifice of all self-interest. It may be replied that the violation of a contract in the course of the crime by the condemned has exposed him to vengeance, but nothing is thereby settled concerning the nature of this vengeance - its justification or what response is proportional to the crime. Moreover, rationally agreeing to make the compromises necessary for cooperation in society requires that the state of nature be very ugly. This means that the incentive for entering the agreement cannot be to escape from legal oppression, to take flight from the very laws that are alleged to protect a person, nor can it be the only recourse available within an unjust economic system. It means that the Rawlsian original position in which the constitution was composed cannot be one of coercion. And if in fact cooperation forms an important part of our "natural" condition, if gift-giving, potlatch, and surplus constitute this condition rather than scarcity, desperation, limited strength, and egoism, as the contract advocates would have it, then no tacit consent to suffer the consequences of law has been given by one whose alleged agreement is part of a struggle to survive, and no failure to adhere to law requires expiation.

          We become so accustomed to thinking in terms of coercion, to command and obedience relations, that it never occurs to us to consider ethnographic sources of doubt about our "naturally" violent condition. According to Pierre Clastres, among the traits thought to characterize the chief in archaic societies in the Americas is that of being a peacemaker and of responding to every request on his material possessions. (36) Failing these expectations results in the chief's abandonment for another, and none of this depends on that vicious circumstance that is more likely induced than it is protected by our legal system.
There is great need for a thoroughgoing investigation of the role of suffering in our moral make-up, but its expression in punishment and torture confound all but the most superstitious of the religious minds amongst us. The theory of retribution, whereby inducing suffering is a just response to crime, whether or not it improves anything, can only appeal to one who perceives in it a cleansing of evil through expiation. And if death is distinct from suffering, it remains a harm that functions just as pain does as payment to an angry God or State. When responsibility seems important, the reason is only that we want capital punishment to resemble voluntary euthanasia as much as possible, both in terms of method and in terms of consent. Kant objects to Beccaria's use of social contract theory in the latter's argument that nobody condemned to death could rationally enter into an agreement that would risk the loss of all self-interest. Kant reproaches the use of the theory and relies on a view of human dignity. This conception of dignity is designed to imply rational consent to being treated in any way one treats others, and thus to condone a kind of vicarious suicide where suicide itself would be impermissible. Given that nobody condemned to die would rationally agree to their own execution, the challenge is to develop some grounds for overruling any considered objections that the condemned might raise against assuming their own consent. Beccaria's opposition to capital punishment also rests on reflections about deterrence. If the punishment for a transgression is to be in proportion to its gravity, the upper limit on the most severe punishments is yet to be determined. That limit could be life in prison or execution, or it could be death by the rack. On the dubious assumption that any amount of suffering could possibly be deserved, the question for us today becomes, at what point does the mistreatment of a person found guilty of a crime represent a brutalization of society rather than any additional deterrence? Because we no longer accept the deterrence value of gory public executions, the punishment of death belongs to either the same category as a spectacular demonstration of power or to the category of punishments calculated to contribute additional deterrence. As both Beccaria and Jeffrey Reiman point out, once we consider the advantage of any transgression a rational person might contemplate, and the suffering threatened by life in prison, life in prison seems to offer all the deterrence a punishment could raise. Thus, while death by torture represents a more fearful punishment, it does not represent additional deterrence, and this would hold true for the threat of death itself.

          Of two likely replies, one says life in prison is more cruel than death but faces the problem of explaining why it does not then constitute a greater deterrent. The other says we should value the lives of innocent people more than the lives of the guilty, and thus raises the question of exchange value. Assuming this is not a return to the question of prevention or deterrence, there remain the problems of specifying the criteria for valuing a human life and the manner in which a low value translates into extermination. I find it useful to compare euthanasia, where the risk of an erroneous decision in favor of death motivates extremely demanding conditions of permissibility. Here the individual, like the human fetus, is held in high esteem, but would presumably be reduced in value if she had a criminal record. The Texas criterion of "future dangerousness," as well as considerations of past convictions, for example, plays a similar role in the evaluation of the condemned, apart from any questions of guilt. But where there is a prospect of innocence or of otherwise diminished responsibility, the difference in standards between euthanasia and capital punishment is remarkable.

          In addition, a weighing of the comparable value of an innocent and a guilty life supports capital punishment only given the additional assumption that the less valued life must be taken. This idea is sometimes implicit in the suggestion that capital punishment constitutes greater protection than its abolition. Because no greater protection from harm than mere life in prison is evident, the question must be raised, "protection from what?" And when we consider abortion and euthanasia, we begin to get some sense of what the threat to society might consist in. This threat, I believe, is intimately related to a conception of innocence whereby the most innocent is he who has yet to live, what we might call the pre-life of an individual. What seems to be absent in such a life is not simply responsibility for serious wrong-doing, but any participation at all in the activities that bring it about. The most innocent are those who have neither earned any particular protection, nor been tainted by efforts to cope with the social demands of the law. Certain of these demands are often referred to as methods for the "criminalization" of a racial minority or neighborhood. The means of this include, for example, drug laws with mandatory sentencing for offences most common amongst the urban poor. Innocence is a birthright, but it rubs off over time.
This brings us to broader social issues. One line of opposition to capital punishment begins with our responsibility for the circumstances in which murders take place. Nothing so crude as individual responsibility is intended here. Sexual discrimination does not require an illicit appeal to gender and an individual at fault, because the same result can be achieved by enforcing criteria other than gender that, in effect, disadvantage women. (Kymlicka) Similarly, criteria for inclusion need not include race in order to reinforce white supremacy. There are sufficient "objective" criteria that accomplish the same result, but with the added advantage of appearing to be racially enlightened. But if forms of institutional racism are so effective at maintaining the racial imbalance so evident in positions of power, they will also be at least as effective in maintaining the racial disparities in the findings of guilt and in sentencing. As a result, our support for existing legal procedures that result in obscene racial discrepancies in death sentencing can be counted as support for institutionalized injustice, even if no explicit appeal to race can be found.

          The most innocent lives are those that have not been subject to the institutional racism of our justice system, a system some of us bear greater “responsibility” for. The Supreme Court has argued that the state has an interest in protecting the life of a comatose person of whom it cannot be confidently said that termination of treatment under such medical conditions is in her will. It has also favored capital punishment in full awareness of the likelihood that innocent defendants are killed. Thus, its interest in protecting life cannot rest on any future contribution the person may make to society, for the severely mentally disabled or permanently comatose can make no greater contribution than an inmate serving life. What is missing in someone guilty of capital murder is not social utility. Given that we are to refrain from any evaluations about the quality of life at issue in euthanasia, what would explain the relative importance of such evaluations in the administration of capital punishment, where resistance to death is greatest in the one who will undergo it?

          Consider the great disparity between the two cases with respect to our precautions against the risk of making an erroneous decision in favor of death. Where doubts about guilt fail to prevent an execution, the bare possibility of a "medical breakthrough" secures the continued life-sustaining efforts in cases where they are, more than likely, unwanted. Innocence guarantees protection for some unless protection is clearly unwanted. But he who is innocent of the crime for which he has been condemned is still more likely to lack the necessary “innocence” that ensures even prolonged, unwanted treatment in the indefinitely comatose. And if the risk of mistakenly admitting innocence is greater in euthanasia than in capital punishment, it is simply a consequence of institutionalized bigotry that places a higher burden of proof on the usual suspects. Neither the deterrence of executions nor the absence of social utility in the condemned explains the combination of support for capital punishment with opposition to abortion and euthanasia. The difference is rather a matter of divine gardening, a vision of God's plan. Kant's retributivism is a variation of St. Anselm's conception of the divine dignity, one lacking explicit appeal to God but still marked by the instinct to weed. As Beccaria would say, the practice of capital punishment does not aim to eliminate its necessity but to perpetuate the process by which new victims are produced and sacrificed. This understanding also fits neatly with theories of imprisonment that recognize in them not the purpose of reducing crime but rather in perpetuating its usefulness. I consider it a virtue of this account of capital punishment that it is consistent with the critique of the prison initiated by Foucault.

          In closing, I would also like to suggest that the willingness to sacrifice innocent lives is greatly increased where there is religious difference backed by armed resistance, as in the case of the Branch Davidians led by David Koresh at Mount Carmel and the case of John Africa’s MOVE followers in Philadelphia. In each of these examples another sovereign has been recognized by the State and burned to the ground. Concern for guilt and innocence is likewise absent. Here we can see clearly that capital punishment is not restricted to individuals said to be guilty of a crime.

Bibliography

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