Feser on Capital Punishment

Ed Feser's long awaited book is now available for pre-order.  Blurb:

The Catholic Church has in recent decades been associated with opposition to the death penalty. It was not always so. This timely work recovers, and calls for a revival of, the Catholic tradition of support for capital punishment. Drawing upon a wealth of philosophical, scriptural, theological, and social scientific arguments, the authors show that it is the perennial and irreformable teaching of the Church that capital punishment can in principle be legitimate -not only to protect society from immediate physical danger, but also for purposes such as retributive justice and deterrence. They show that the recent statements of churchmen in opposition to the death penalty are merely "prudential judgments" with which faithful Catholics are not obliged to agree. They also show that the prudential grounds for opposition to capital punishment offered by Catholics and others in recent years are without force.

There are some decent arguments against capital punishment, but that capital punishment "can in principle be legitimate" seems to me quite easy to show.  If one commits capital offenses, then one deserves capital punishment.  If one deserves capital punishment, it's permissible (and perhaps sometimes even obligatory) for that person to be put to death.  That some people have committed crimes warranting their own deaths is plainly obvious.

Another Argument Against Capital Punishment

This series on the death penalty got started with a flippant remark about those who are in favor of retaining the death penalty but are also pro-life on abortion by N.T. Wright.  Wright seems to think that capital punishment is in-principle immoral--at least that is what his remark, even in context, suggests.  He goes on to add, "The rest of the world, today and across the centuries, simply doesn’t see things in this horribly oversimplified way…"

On the contrary, it seems to me that his position is overly simplified.  There are no obvious arguments that capital punishment is in-principle unjustified or impermissible.  In fact, for a Christian or Jew who takes the Bible seriously, it is difficult to square such a view with some Old Testament prescriptions for capital punishment; if capital punishment was permissible once then it is not in-principle impermissible.  Hence if capital punishment is to be abolished, it seems to me that the best arguments for its abolition are complex, in-practice arguments.

A reader, JT (philosophy professor and friend of friends) offers one such argument, similar in many ways to the one in the previous post on capital punishment.  It is a good and thoughtful one.  I add two premises and a conclusion to which I do not think he will object and I comment throughout.

Here's the best argument I can think of against capital punishment: 

(1) In a society like ours, the vast majority of cases of capital punishment are motivated by vengeance. 
(2) But every action motivated by vengeance is ipso facto morally wrong. 
(3) Therefore, in society like ours, the vast majority of cases of capital punishment are morally wrong. 
[(4) If (3), and there are no other goods which would justify capital punishment in our society, it should be abolished in our society.]
[(5) There are no other goods which would justify capital punishment in our society.]
[(6) Thus it should be abolished in our society.]

I take it that (2) is fairly evident from Christian scripture and tradition (although I'm optimistic that it could also be seen to be true on the basis of natural reason). So I expect that (1) is the controversial premise here. In order to see why (1) is right, it's helpful to think of some of the legitimate aims of punishment. 

One of the Better Arguments Against Capital Punishment I Have Seen

I believe these are all lecture notes from Alexander Pruss (I don't want to give the reader the impression that this is Pruss's final, considered view on the issue; it's a sketch of an argument but a very clear sketch):

Aquinas on Capital Punishment

Capital Punishment #1

Capital Punishment #2 (there is some overlap with #1 at the beginning)

The last third of the third link gets to the crux of Pruss's argument.  His view seems to be that capital punishment is in-principle permissible (and perhaps in some circumstances obligatory.)  However, a society has no strict obligation to punish an offender by means of capital punishment.  Knowing that someone has (e.g.) committed a murder gives one a strong reason for capital punishment, but there might be overriding reasons for adopting lesser penalties such as life in prison in a society that has the money to afford prisons and can insure that offenders do not commit further capital offenses.  If there is no significant deterrence of crime from capital punishment, the (a) value of the offender's life and the (b) plausibility of the dehumanizing effect on the executioners (who kill guilty, but helpless humans) provide reasons for adopting lesser punishments.

A very measured argument.  I suggest reading the whole thing.  I find myself in agreement with almost all of it.  Yet I think there is a bit more to be said.  First, I think that capital punishment does deter crime, though it is notoriously difficult to provide hard, empirical data one way or the other. At any rate, I think that it certainly can deter crime if implemented in some ways rather than others.  I would need a great deal of empirical evidence not to think that speedy trials with public hangings deter crime more than lethal injections done in private quarters after multiple trials and years in prison or life imprisonment.  But more on this, perhaps, in the next post tomorrow.

Beyond the deterrence of capital offenses, it certainly prevents further capital offenses (the dead can't commit more capital offenses; to his credit Pruss rightly alludes to this in his final sentences about escape artists and poor countries.)   Moreover, it is good for societies to put their ultimate stamp of disapprobation on horrendous acts of injustice committed by hardened, unrepentant criminals, not merely as a matter of deterrence, but as an act of solidarity with the vulnerable.  Pruss is correct that the value of the life of the (e.g.) murderer and the potentially dehumanizing effects on the executioners do provide additional reasons against the practice of capital punishment.  At the same time, in eliminating capital punishment there is also the real potential that a society will find itself having less solidarity than is warranted with the vulnerable and more than is warranted with the worst capital offenders.  The primary role of the government is to insure justice to all of its citizens and the effect of removing capital punishment could have the effect of lessening the primary value of that role in the eyes of the citizens.  As well, abolishing capital punishment eliminates principled and meaningful acts of mercy as should be the end result in this case.  (Of course, cases like this where the execution goes through also give reason for eliminating the death penalty in practice even if not in theory.)
I'll have more to say about the issue tomorrow when I consider JT's interesting argument.

Scot McKnight Against the Death Penalty

I agree with Scot McKnight on more important issues than I disagree.  We're on the same team.  Nevertheless I demure on his recent post on capital punishment.  I am going to skip over the part where McKnight talks about the Old Testament and head right to the part where I have disagreements.  Also, I have not looked at the 100+ comments about his post; perhaps some of the issues I raise are addressed by him there.

Third, Jesus clearly undermines the lex talionis. Not because Jesus didn’t believe in justice, or that the death penalty was unjust. Here’s what Jesus says:

 Matt 5:38 “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ 39 But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also; 40 and if anyone wants to sue you and take your coat, give your cloak as well; 41 and if anyone forces you to go one mile, go also the second mile. 42 Give to everyone who begs from you, and do not refuse anyone who wants to borrow from you.

The Torah of Moses specified justifiable revenge; Jesus contends that his followers are to extend grace. He knows what justice permits; he just doesn’t think that is the way to proceed for his community of faith. Yes, he seems to be saying, the lex talionis is just, but among my followers there will not be the pursuit of revenge. As I point out in The Sermon on the Mount, what was “show no mercy” in the Torah under Jesus becomes an opportunity to show mercy. [my highlights in bold]

Would Jesus Support the Death Penalty?

Jonathan Merritt, writing for The Atlantic, asks, "Would Jesus Support the Death Penalty?"  For Christians, the question is equivalent to, "Would God Support the Death Penalty?" which raises the more general question, "Should We Support the Death Penalty?"

What do we mean by this question?  We might be asking whether capital punishment (CP) is permissible (in theory) or whether it's intrinsically wrong.  We might be asking whether it's not only permissible, but also obligatory.  We might also be asking whether, even if permissible, CP is overall good or better than alternative punishments for certain crimes.  Or we might be skipping past these questions to the question of whether we should vote for legislators who would implement it.

That it's permissible (in theory) seems to be well supported by the following propositions, one of which only believers in the Western faiths will find appealing:

1. In the Old Testament, God assigns capital punishment for certain offenses; thus there have been times when CP is permissible; thus, in theory, it's permissible.
2. If one knowingly murders an innocent person, one gives up one's right not to have one's life taken in return; if one gives up one's right not to have one's life taken in return for a murder, then CP is permissible in theory; thus CP is permissible in theory.

I find 1 and 2 hard to resist, but Merritt seems opposed to them and against CP in theory as well as in practice. Let's see some of his evidence against it:

Christians who support the death penalty often cite passages from the Old Testament that allowed for capital punishment. But Jesus told his followers not to observe the Jewish law that allowed for retributive justice: “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.”

As theologian Benjamin Corey says, “It is not possible to argue a Christian case in support of the death penalty while citing passages from the Hebrew scriptures, because this will put one at odds with Jesus himself.”

Theologian Benjamin Corey appears to be flirting dangerously close to Marcionism: Is it "not POSSIBLE to argue [for] a Christian case in support of the death penalty while citing passages from Hebrew Scripture"?  Surely that is putting things too strongly.  Here are possible interpretations of Jesus's remarks on lex talionis, not all of which seem impossible to square with a proper interpretation of the Old Testament:

1. Jesus is denying that retributive justice is permissible.
2. Jesus is denying that retributive justice is obligatory.
3. Jesus is denying that retributive justice is obligatory and permissible.
4. Jesus is denying that retributive justice is obligatory and permissible for individuals not acting in the capacity of a state official.
And so forth.

My own view, which I shall not argue for here, is that Jesus is denying that one should ever act simply for the sake of retribution.  Jesus is focusing on the heart and the reasons why we do things.  He is against a certain mindset of reciprocity.  If that is correct, then Jesus is not here denying that it's ever permissible for a state to put people to death (which is a good thing, since the opposite would be hard to square with Romans).

Many forget that Jesus once served as a one-man jury on a death-penalty case. In a famous New Testament story, an adulterous woman was dragged to Jesus’ feet. The woman was guilty of a capital offense and had been caught in the act by at least one witness. The law mandated her death but Jesus prescribed a different response: “Let whoever is without sin cast the first stone.” He was teaching that only a perfect being—only God—should have power over death and life.

The problem with taking this passage to rule out CP gets to a problem that CP abolitionists almost always ignore in this discussion: If this story rules out CP, it would seem to rule out all punishments as well.   Let those of you without sin sentence someone to life in prison.  Let those of you without sin sentence someone to five years in prison.  Let those of you without sin....  I take that as a reductio ad absurdum of the argument which interprets the passage as condemning any instances of CP.

There’s no reason to believe that Jesus or these early Christian leaders would feel any different about the matter today with our broken justice system. The most reliable predictor of whether someone will be sentenced to death is not the amount of evidence, but the race of the victim. Geography is also an important factor, which is why a handful of counties are responsible for most of the executions in the United States. And then of course wealth is a factor, as almost all death-row inmates could not afford their own attorney. 

No doubt race and money have some influence in legal matters (but the statistics he cites fail, by themselves, to give an actual argument that the explanation for the majority of the statistics is unjust discrimination). But of course there are all sorts of irrelevant factors that influence prosecutors and juries: how attractive one is, whether one shows emotional displays of empathy in the court room, whether one is a woman (far fewer women convicted of murder receive the death penalty compared to men), and so on.  But this does nothing to show that CP, any more than any other punishment, is impermissible.  At best, what the statistics show (if they can show that there is unjust discrimination), is that there are jurisdictions which need to correct their punitive practices more generally.

There are also practical reasons to oppose the death penalty. [TB: Wasn't the stuff about race a practical reason?] Studies show that death-penalty cases are as much as 10 times more expensive to adjudicate than comparable cases. And the risk of executing a person unnecessarily is real.  

Of COURSE it costs more to adjudicate CP cases, but that's a GOOD thing.  The reason it costs more is because of all the appeals, appeals which are there to make sure the person is guilty.  Yes, "the risk of executing an [innocent] person unnecessarily is real," but so the risk of imprisoning a person FOR LIFE who, unlike the person on death row, is not afforded multiple appeals.

Following Claiborne’s encounter with Haslam, I joined Claiborne in visiting death-row inmates atRiverbend Maximum Security Institution. I spent more than an hour conversing with these men, four of whom have execution dates scheduled. I could feel the weight of desperate prayers and desperate pleas of desperate prisoners.
While I sat talking with them, Dear’s words came to mind: “Killing people who kill people is not the way to show that killing people is wrong.”

Question: Would they have been praying if they were sentenced to life in prison?  Perhaps we'll never know, but the above should dispel the notion that there is any merit to the argument that some U.S. Christians give about "needing more time to repent."

It is true that murdering people who murder people is not the only way to show that murdering people is wrong.  One could also show that murder is wrong by having them watch a murder on Youtube.  (Of course, most people don't NEED to be shown it's wrong to know that it's wrong!)  But not punishing people EVER (which Merrick's argument seems to entail) is also not a way to show people that what they did was wrong.  What eliminating punishments would do is to mislead people into thinking that actions don't have consequences.

It brings to mind one of the best scenes from Breaking Bad (no major spoilers here):

So do I believe in CP?  Yes, I guess I do.  I think it should be rare.  It should only be for acts so heinous that society puts its ultimate stamp of diapprobation on them as a way of standing in solidarity with those who have received horrific acts of injustice.  Stoning to death for prostitution wouldn't meet that bar; but abducting, torturing, shooting, and burying alive a teenage girl would.

For more on CP see the Maverick here:

Death Penalty, Abortion, and Certainty
and here:
Capital Punishment and the Difference Between Conservatives and Leftists