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.

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. 

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]

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.

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

Was Martin Luther King, Jr. Like a Nonviable Fetus?

It just occurred to me that a certain kind of objection seems applicable both to moral relativism and a popular pro-abortion position. 

In short, I'll understand moral relativism as the view that moral truths are relative to particular cultures or societies.  If your society practices capital punishment, then it's morally permissible.  If it disapproves of it, then capital punishment is morally wrong.  [A bit more precisely I'll understand moral relativism as the view (a) denying the following: there are some moral truths independent of whatever people in a given society believe or practice, and (b) affirming the following: moral truths about some action A in a society are true only because people in that culture believe that A is right or wrong or practice A.]
 
Now there are all sorts of problems with moral relativism.  If true there would be numerous absurdities which I won't go into.  Instead, I'll focus on just one which also applies to arguments involving the viability of a fetus:

Can a Return to Federalism Save Us?

The Maverick Philosopher:

Can a Return to Federalism Save Us?

The Problem

I fear that we are coming apart as a nation.  We need to face the fact that we do not agree on a large number of divisive, passion-inspiring issues.  Among these are abortion, gun rights, capital punishment, affirmative action, legal and illegal immigration, same-sex 'marriage,' taxation, the need for fiscal responsibility in government, the legitimacy of public-sector unions, wealth redistribution, the role of the federal government in education, the very purpose of government, the limits, if any, on governmental power,  and numerous others.

We need also to face the fact that we will never agree on them. These are not merely academic issues since they directly affect the lives and livelihoods and liberties of people. And they are not easily resolved because they are deeply rooted in fundamental worldview differences, in a "conflict of visions,"  to borrow a phrase from Thomas Sowell.   When you violate a man's liberty, or mock his moral sense, or threaten to destroy his way of life, or use the power to the state to force him to violate his conscience, you are spoiling for a fight and you will get it.

We ought also to realize that calls for civility and comity and social cohesion are pretty much empty.  Comity (social harmony) in whose terms?  On what common ground?  Peace is always possible if one side just gives in.  If conservatives all converted to leftism, or vice versa, then harmony would reign.  But to think such a thing will happen is just silly, as silly as the silly hope that Obama, a leftist, could 'bring us together.'  We can come together only on common ground, or to invert the metaphor, only under the umbrella of shared principles.  And what would these be?

There is no point in papering over very real differences.

Not only are we disagreeing about issues concerning which there can be reasonable disagreement, we are also disagreeing about things that it is unreasonable to disagree about, for example, whether photo ID ought to be required at polling places, and about what really happened in the Michael Brown and Trayvon Martin cases.  When disagreement spreads to ascertainable facts, then things are well-nigh hopeless.

The rifts are deep and nasty.  Polarization and demonization of the opponent are the order of the day.   Do you want more of this?  Then give government more say in your life.  The bigger the government, the more to fight over.  Do you want less?  Then support limited government and federalism.  A return to federalism may be a way to ease the tensions, some of them anyway, not that I am sanguine about any solution. 

What is Federalism?

Federalism, roughly, is (i) a form of political organization in which governmental power is divided among a central government and various constituent governing entities such as states, counties, and cities; (ii) subject to the proviso that both the central and the constituent governments retain their separate identities and assigned duties. A government that is not a federation would allow for the central government to create and reorganize constituent governments at will and meddle in their affairs.  Federalism is implied by the Tenth Amendment to the U.S. Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people."
 

Federalism would make for less contention, because people who support high taxes and liberal schemes could head for states like Massachusetts or California, while the  conservatively inclined who support gun rights and capital punishment could gravitate toward states like Texas.
 

We see the world differently.  Worldview differences in turn reflect differences  in values.  Now values are not like tastes.  Tastes cannot be reasonably discussed and disputed  while values can.  (De gustibus non est disputandum.) But value differences, though they can be fruitfully discussed,  cannot be objectively resolved because any attempted resolution will end up relying on higher-order value judgments.  There is no exit from the axiological circle.  We can articulate and defend our values and clarify our value differences.  What we cannot do is resolve our value differences to the satisfaction of all sincere, intelligent, and informed discussants.

 

Example: Religion

Read the rest.

Bill concludes with the following observation and question:

I understand that my proposal will not be acceptable to either liberals or conservatives.  Both want to use the power of the central government to enforce what they consider right.  Both sides are convinced that they are right.  But of course they cannot both be right.  So how do they propose to heal the splits in the body politic?

TB: The answer, of course, is by an appeal to emotion, deceptive media practices, and coercion.  (Though I'm curious why Bill thinks that the proposal will not be acceptable to conservatives.  Perhaps he has in mind neoconservatives.)

"Thou Shalt Not KILL?"

I was talking with a colleague who knows Hebrew more than I (i.e. he knows Hebrew and I don't) about the Hebrew meaning of the term "kill" in the Ten Commandments. I was curious if there were a good English equivalent of the term, since I either hear things like, "It says, 'Thou Shalt not Kill,' therefore, pacifism" or "Thou Shalt not Murder," hence manslaughter is permissible.  But I hear much more of the former.  I don't know how many times I've heard from the more pacifist crowd, "Thou Shalt not KILL" (even from professors who should know better) which take the verse to prohibit all killing.  Of course, if it prohibits killing in general, that's a prohibition against killing fish, bugs, and plant life.  This, of course, is absurd, since the Old Testament in surrounding contexts permits (and sometimes commands) some killings.

His response:  "[The Hebrew word] is ordinarily restricted to use with humans as the object.  It seems to be used for both voluntary and involuntary killing, so the commandment seems to be urging care not to kill as well as simple prohibition of murder.  In the culture of the time, of course, there was a whole class of sanctioned killing (capital punishment, war) that would not have been included here."


My response: There doesn’t seem to be a good, single English equivalent word, then, at least that I can think of off the top of my head.  “Kill” is far too broad.  “Manslaughter” is too narrow (it includes reckless killing but excludes intentional killing like murder.)  “Murder” is too narrow (since it includes only unjustified, intentional killing of an innocent.)  “Homicide” is too broad (since there are justifiable homicides in self-defense, etc.)    

However the legal term “negligent homicide” seems pretty close, though it’s a lesser offense than murder, so it’s still inexact.

The Latin Vulgate is “Non occides.”  Roughly, don’t kill/slay (but can mean don’t murder in certain contexts).  It might be broader, though, than “interficio.” This is speculation, but if “occides” has a broader semantic range perhaps the Vulgate use had some influence in the choice of the English word "kill." 

Sprinkle's Book "Fight" and CHRISTIAN Pacifism

This is the fifth post on Sprinkle's book, Fight: A Christian Case for Nonviolence.

An alternative title which would have been just as fitting is Fight: A Case for Nonviolent Christians.  For Sprinkle's pacifism condemns violence for Christians, but he leaves open the possibility that certain acts of violence may be permissible for non-Christians.  Here are a few quotations to make good on that last claim:

"So far, I've argued that killing is wrong and therefore killing the attacker is wrong.  In other words, killing is a moral absolute: Christians should never do it" (p. 222).

"The big question, of course, is whether a Christian can use violence as a police officer.  No, I don't think he or she can" (p. 248).

 Now, some interpreters say that Jesus's Sermon doesn't apply to governments, only to individuals.  There is certainly some truth to this.  After all, Jesus doesn't preach His Sermon to the Roman Empire or the American government.  However, the Sermon does apply to all citizens of God's kingdom, and it should saturate all areas of life. It would make no sense to say that the Sermon on the Mount is fine for individual Christians--even better for the church--but that it doesn't apply to Christians in the government" (p. 140).

"Romans 13 does not speak of Rome's warfare policy against foreign nations, but of its police and judicial action toward its own citizens.  Paul's phrase "bear the sword" (v. 4) refers to police action within a government's jurisdiction, not warfare outside its territory (p. 167)...Paul says that God's wrath and vengeance are carried out through Rome, and he has just commanded the church not to carry out such wrath and vengeance.  Vengeance is God's business, not ours.  We don't need to avenge evil, because God will.  And one way that God will is through governing authorities" (p. 170).

"In Genesis 9:5, God seems to allow the death penalty for murder" (p. 42).

"While God allowed Israel to participate in some wars, He never allowed His people to revel in the carnage the way their neighbors did" (p. 68).

Now, I don't want to give the impression that Sprinkle has a settled view with respect to the morality of non-Christians killing (or committing acts of violence more generally).  He is pretty coy about this issue, and this is one of the places where I wish he would've been clearer and would've said whether he thinks some non-Christian violence is permissible, impermissible, or that he's agnostic about the matter.  At any rate, what is pretty clear is that he thinks that Christians are called to forego all violence even if, perhaps, non-Christians are not.

Why, though, should we think that such an important moral demand is not universal?  Child sacrifice, stealing what one doesn't need to survive, adultery, murder, and so forth are all universally impermissible--no one should commit such acts.  Why think that violence isn't permissible for Christians but might be permissible for non-Christians?