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When it’s ok to kill a person

Ernest van den Haag defends the use of capital punishment on constitutional, utilitarian and retributivist grounds. We have nothing to say about the first of these except that, one would hope, it should follow from some moral theory to which at least the latter two pay homage. And even van den Haag seems to concede that only the last, retributivism, comes close to bearing the moral burden well.

Retributivism is the idea that it is right to visit evil on those who visit it upon others. Capital punishment is the application of this principle to ultimate evil. I will address the idea of outrage and how, if ever, it should be indulged. Retributivism seems to require that it should—that is to say, that outrage at an imbalance can be moral.

Van den Haag writes,

Murder differs in quality from other crimes and deserves, therefore, a punishment that differs in quality from other punishments. There is a discontinuity. It should be underlined, not blurred.

He adds,

If it were shown that no punishment is more deterrent than a trivial fine, capital punishment for murder would remain just, even if not useful.

And finally,

To refuse to punish any crime with death is to suggest that the negative value of a crime can never exceed the positive value of the life of the person who committed it.1

Here is the bottom-line: Forget the red herring of its utility, capital punishment is really about the expression of outrage. The real question is this: Is this expression of outrage ever morally justifiable? I do not see how it could be, given what morality has to say about rage of any sort. If outrage is ever justifiable, it will have to appeal to some extra-moral considerations. Are there such considerations?…

Is it ever moral for children to be brought into the world, that is, for life to be given? Again, and for the same reason, I think not. Morality is about elevating or nurturing beings already and still in existence. It is not about inviting them in or escorting them out. Children come into the world for, at best, selfish reasons. As often, if not usually, they are accidents or the objects of velleity. At best, their entrance into the world is amoral, a matter of indifference to the balance of evil and good. To greet them as blessings is to posit more life as preferable to the best life, a highly dubious move from a moral perspective. But the widespread tendency to do precisely this anyway is no doubt instinctive and concerned with the survival of the kind rather than the quality of the conscious life of any one individual of that kind. (We are addressing our conscious participation in the process, not nature’s adiaphorous program, whatever that is.) Religious imperatives aside, morality in neither of the only two genuine forms it takes—feminine or masculine—requires it. Conscious existences and their reproduction are presupposed but not enjoined by a moral vision. Nevertheless, we continue to reproduce with abandon. (The insinuation here targets any reproduction, not just cultures with high birth rates. The notion that one is being morally responsible by holding a population steady through mere replacement is a conceit. Morality has no special interest in its own survival at all. Again, it is about the quality of survival and morality applies as long and only as long as there is any field for its operation.)

If in spite of this we celebrate new life, it must flow from a biological exigency that thumbs its nose at what is ultimately good for us.

Morality, for good or ill, is set aside whenever it conflicts with this impulse. And it can never be said that this disposition of the matter represents properly an extra-moral value—for only morality can dole out that accolade. The joy at a newborn happens in spite of any judgment or scale of value. (If “multiply and be fruiful” were a moral injunction, we would have to accord moral status to the lowliest forms of animal and vegetative life.)

Our moral business is to manage the impulse. Thus we are morally right to do what we can to control unsustainable population growth wherever we can.

A similar damage control mode must be assumed when we face the understandable—if never justifiable—outrage we may feel at the willful killing of an innocent. We shall probably not do the right thing. Perhaps we may not be made of the right stuff to be capable of doing the right thing. But, we must, at a minimum, create the right conditions for the right thing to be done….

The right thing to do is to contain the danger in one who unjustly takes the life of another but nevertheless not to follow him (usually him) in the act of taking life. (See my remark on barbarization as to why.) What morality enjoins here is easy. Putting it into practice among a class of beings who may yet not be made of the right stuff to appreciate the morally right thing to do is more involved, but here is a sketch of how it might be effected:

Capital punishment has, as far as I know, never been applied correctly in any state or community—even conceding the—in some extra-moral sense—“rightness” of outrage at unjust killing. The problem is that, through misplaced squeamishness at the idea of indulging vengeance in the individual, the removal to abstract bodies of the prerogative to take life has led to a gross injustice even from within a retributivist perspective.

A sketch of how it works: There is an unjust taking of life. The taker is identified and determined to be without acceptable excuse for his or her behavior. The gravity of the crime requires the ultimate penalty. All and only people who unjustly take life this way deserve this penalty. The reality is that we will never apprehend them all—or even most. But with regard to the ones we do identify, apprehend and convict at least here, we will say, retributive justice has an opportunity for expression. It gets expressed. Someone willfully forfeits his right to life and justice gets done. So far so good.

But sometimes it happens that despite our best efforts at identification and judgment an innocent is convicted and put to death—what happens then? All and only: we may be excused for not getting them all, but can we be excused for getting more than we should?

The logic of retributivism is clear: All and only unjust killings should be avenged. Most murders (we want to believe) are ill-considered. But when it happens, the killing of an innocent by a party who kills with the utmost deliberation is as unjust as can possibly be. Who pays the ultimate price when it is the state, a bloodless abstraction, that commits the premeditated unjust killing? The state servant who pulls the lever or pushes the button? No. The judge or jury? No. Some elected or appointed official? No. No part of the community that originally invested the power to take life in the abstract authority that is the state pays. And certainly never the whole of that community. (At least not but in the most remote way in which its abstract conscience (if there is such a thing) may be ruffled or the disturbing judgment of distant cultures or future historians may be contemplated and then, of course, dismissed). Not withstanding the sleepless night of the odd juror, no one pays concretely, i.e., with the cessation of his or her life.

Why not?

The logic of retributivism is being supplemented here because, left alone, it would insist that the killing cannot stop as long as the willful death of an innocent is left unavenged. It is almost as though we can tolerate the killing of innocents as long as symbolically we all participate in it. What evil then is so great that it cannot be tolerated if we all participate in it?

But suppose we forswore such supplementation and stuck to the pure logic of the concept of moral retribution… Since we cannot execute entire communities, and given that someone must pay if we are to remain retributivists, whom shall it be?

How it should work: The most plausible candidate is the executioner, the one physically responsible, the one who pulls the lever or pushes the button, etc. When the system permits a “mistake” to happen this person must pay. But no one can be hired to assume this level of responsibility. The executioner cannot be an employee or agent of the state. As in war where we expect soldiers (so we are told) with an emotional stake in the cause, the defense of their beloved country, to do the killing for us, so here, those who can barely live knowing a brutal crime may go unavenged must do the killing for us—or rather first for themselves and then for us if we can identify with them. The same thing that makes the use of pure mercenaries in national defense a desperate and morally compromising move makes anyone other than an aggrieved survivor of the victim morally inappropriate as executioner.

Such an arrangement would account for one of two essential retributive requirements of redressing the taking of an innocent life:

i. The expression of the all-too-human impulse to intolerable outrage at an unjust killing.

There is supposed to be an awful price to pay when an awful crime is committed. When someone dear to me is brutally murdered, I may be excused for not wanting to live another day myself knowing the agent of that murder still breathes. A system that would indulge me this feeling to the point of permitting me to insure that the murderer’s life ended would satisfy the requirement. The system’s role might remain much the same as it is now: to identify, apprehend and convict the right person of the crime—but it would no longer be invested with the power to take life on behalf of any individual and never on behalf of some party who could not take full responsibility, such as itself. That right, if it is exercised, must belong to an individual whose own life can itself be put on the line. The very idea of a corporate veil is immoral. (By corporation here I mean any abstract entity, beginning with the state itself and ending with any of its creations, that permits itself to manage the duration of individual human lives.) Revocable, redressable punishment would, of course, still be a permissible state prerogative exactly because the state can at least attempt to undo it when called upon…at least in a more morally scrupulous world than the one in which we live.

(That last concession to reality is not meant, as many will no doubt take it, as a reason to discount the practicality of the system just described. I submit it as a challenge.)

Underlying the suggested revision of how capital punishment ought to be administered presented here is the belief that we are morally educable: that faced with the enormity of the act of taking life we can come to do the right thing for the right reason. What true dignity underlies the idea of retribution lies in this faith. To the extent this is not true we are talking pure vengeance in the face of which all moral discourse is so much hot air.

The proposal described thus gives what is noble about retribution its due. But we make a second demand:

ii. All and only the deserving should get punished.

What stands in the way of our getting them all is nothing peculiar to the crimes under discussion here. (Resources are limited, what more can be said but to use them more efficiently?)

But the “only” part is critical in the case of capital crimes. Human fallibility here cannot be redressed without awful consequences. But the logic of retribution requires it nevertheless.

As things are today, what happens when an innocent, duly processed and convicted by the system, is sentenced to death and the sentence is carried out? When the wheels of justice have found the accused “guilty beyond the shadow of a doubt” and his remains lie in some vault or urn or hole in the ground—and only later we learn conclusively or, as certainly as empirical findings ever get, that he or she was innocent, what happens? Apologies? Material compensation for the bereaved or the estate? For the retributivist, these amount to nothing. If these things were inadequate redress the first time around, why would they be now?

What should happen is that the executioner, the one who physically caused the death, author of the last human act standing between life and death for the deceased, should pay for this new act of murder with his or her own life. No one can be paid to perform this role. Because executions are clearly witnessed and heavily documented we would know who is responsible. And just as obviously this person must up to the last moment have been free not to bring about the death of the convicted. There would be this one shining moment in their lives when they might rise above the human, that is, the rest of us.

But if the aggrieved survivor of the victim2 (for who else can fulfill this role?) does the deed, then in that same act they must know they have taken upon themselves the burden of being guarantors of human arrogance in the face of possible error. The role of the system would be—as indeed it should be now—to minimize all possibility of error. The difference is that the remote possibility would under the present proposal be taken into account and insured against. In the unlikely event of error, another human being who may have never done anything in his or her life to deserve being placed in the position of executioner will nevertheless suffer the fate of being executed (again, by another aggrieved survivor, if any, driven in turn to take his or her fate into his or her hands) because of a single act born of the indulgence of a tragic passion.3

The killing would not stop until the passion is exhausted—or human error overcome.


1. Ernest van den Haag, “In defense of Capital Punishment” in Crime and Punishment: Philosophic Explorations, Michael J. Gorr and Sterling Harwood, eds., (Boston and London: Jones and Bartlett, 1995), pp. 498. [This version is expanded from a paper delivered in 1977.]

2. Who would and would not qualify as an “aggrieved survivor of the innocent victim” would have to be determined by court or statutory procedures, but clearly prima facie cases would include immediate relatives and conceivably close friends as well. The absence of a qualifying and willing survivor would, of course, obviate the death penalty in the case.

3. One might think that certainty with regard to guilt this second time around would have finally been achieved. I won’t discuss that unimaginative conclusion here.

Editor’s note: Luno’s idea that only an aggrieved survivor of a murder victim can claim any semblance of justification for inflicting death on the murderer first appears in Philosophical Notebook X (9/27/1994 – 11/30/1995), section 45.

Posted by luno in capital punishment, Deontology, Utilitarianism, male criminality (Saturday August 13, 2005 at 3:31 pm)

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