Month: August 2018

This is what happens when leftists are in charge. And you are still a Democrat? Perhaps you need to see a proctologist who specializes in head injuries.

An explosion of drive-by shootings erupted on Chicago’s South and West sides this weekend. At least 74 people were shot, and 12 killed, between 3 p.m. on Friday and 6 a.m. on Monday.

[. . .]

Meantime, Chicago mayor Rahm Emanuel and Illinois attorney general Lisa Madigan recently celebrated the issuance of a 232-page draft consent decree for the Chicago Police Department, possibly the longest police consent decree ever written. Among numerous other red-tape-generating provisions, it requires the CPD to revise its protocols regarding “transgender, intersex, and gender non-conforming individuals,” to make sure that the CPD policies properly define these terms and that officers address intersex, transgender, and the gender non-conforming with the “names, pronouns and titles of respect appropriate to that individual’s gender.” 

Paul J. Griffiths in Against Capital Punishment gives the following argument against C. P.:

The U.S. is a constitutional democracy, committed in theory to serve and protect the inalienable rights of its citizens, who are also its sovereigns. Those inalienable rights include the right not to be killed. A sovereign authority that permits or requires itself to alienate that right from any one of its citizens, for whatever reason, performs an incoherent act. It arrogates to itself the right to make exceptions to the universal economy of rights it theoretically serves, and thus makes itself sovereign over the economy of rights it is supposed to recognize, acknowledge, and serve. Dictatorships can coherently do this; constitutional democracies can’t. 

Here is my pithy formulation of the argument. It is logically contradictory to maintain both that (1) the right to life is a unalienable and thus inviolable natural right logically antecedent  to the state and its constitution, and that (2) the state has the right to violate the right to life as a punishment for certain crimes.

Edward Feser in Hot Air vs. Capital Punishment: A Reply to Paul Griffiths and David Bentley Hart  is not impressed with Griffiths' argument:

Then there is Griffiths’ claim that, at least in the American context, when the state executes an offender it “performs an incoherent act.” How so? Because, says Griffiths, the American system is “committed in theory to serve and protect the inalienable rights of its citizens” and “those inalienable rights include the right not to be killed.” But there are at least four serious problems with this argument. First, it proves too much. While it is true that the Declaration of Independence refers to “unalienable rights,” and includes the right to life among them, it also includes the right to liberty. Hence, Griffiths’ argument, followed out consistently, would entail that in the American context the state performs an “incoherent act” even when it imprisons offenders, and indeed when it inflicts any punishment at all, since all punishments in some way or other infringe on an offender’s liberty. Presumably Griffiths would not want to do away with the entire system of criminal justice. In that case, though, he cannot consistently appeal to the Declaration as a justification for abolishing capital punishment, specifically.

Second, precisely because Griffiths’ interpretation would have such absurd consequences, it is hardly plausible to suppose that Jefferson and Co. meant for the term “unalienable” to be understood the way Griffiths understands it. Surely what they had in mind is the idea that an innocent person cannot have his basic human rights taken from him by the state. A guilty person, however, forfeits his rights by virtue of his offense, and for all Griffiths has shown, this can include the right to life no less than the right to liberty. (Indeed, the same generation that gave us the Declaration of Independence enacted capital punishment laws in every one of the original thirteen states and in the First Congress. The Bill of Rights itself recognizes that citizens may be deprived of “life, liberty, or property” as long as there is “due process of law.”)

Third, it is in any case far from obvious that the presence of these words in the Declaration would make the American system “incoherent” even if we accepted Griffiths’ interpretation of them. For while the Declaration expresses certain widely shared moral ideals, it does not follow that they have, simply by virtue of being in the Declaration, any legal or constitutional significance. While an explicit or implicit contradiction in the law itself would plausibly ground a judgment to the effect that there is “incoherence” in the U.S. system of criminal justice, a mere reference to widely shared and vaguely defined moral sentiments hardly provides a compelling argument.

Fourth, what matters ultimately is not what the Declaration says, but what natural law reasoning actually establishes. And what it establishes, as we argue in the book, is that an offender can forfeit his right to life, just as he can forfeit his right to liberty. Human law, including the American system of criminal justice, is answerable to natural law, not the other way around.

Feser 1 – Griffiths 0.

This just in from Daniel M.:

Thanks for the recent posts on capital punishment. I acknowledge the distinction you make between lex talionis (LT) and "punishment must fit the crime" (PFC), which you use to rebut this objection from a reader:

If your argument is that the punishment must fit the crime, what about cases of extreme cruelty (Ted Bundy, e.g.)? Should the state have tortured him? Of course not, that would be inhumane. What makes this different from the death penalty?

The idea, I take it, is something like:

(1) If PFC, cruel acts should be punished with cruel acts.

(2) Punishment shouldn't be cruel.

(3) So PFC is wrong (and so can't be used to support the death penalty).

(Another line of thought here might just be: the death penalty is inhumane!)

I can't speak for the reader, but it's not clear to me that this sort of argument depends on conflating PFC with LT. Admittedly, here's one way of supporting (1):

(A) If PFC, the manner of punishment should resemble the crime.

That's a spurious basis for (1), as it confuses PFC with LT, as you explain. But here's my concern: might there be another way of motivating (1), or at least a related claim to the effect that PFC sometimes licenses cruelty in punishment?

Suppose A and B are killers, but that A's crimes are more cruel and depraved than B's. If the gravity of the punishment should match that of the crime, doesn't PFC call for a more severe punishment for A? But suppose the only way the state can make A's punishment more severe than B's is by adding cruelty into the mix. To make this a bit more concrete, suppose B gets death by injection, and that this is fitting. Then by PFC, that punishment would be too lenient for A. To emphasize that this doesn't depend on LT, we might suppose that whatever extra treatment A deserves need not resemble the particular cruel acts in A's crimes.

I'm not endorsing cruelty in punishment, but just trying to articulate a problem or puzzle, as I see it, for PFC.

RESPONSE

I agree that that there is a bit of a problem for PFC.  Suppose A rapes a woman and then kills her gently to keep her from talking.  B rapes a woman and then tortures her to death over a 12-hour period. He crucifies her and whenever she is at the point of passing out, he revives her with smelling salts so that she suffers her agony to the fullest.

Both deserve the death penalty. But if the punishment is to fit the crime, or be proportional to it, then the penalty inflicted on B ought to be more severe than the one inflicted on A.  Or so it seems if we go by PFC.

How implement this intuition? Well, crucifying people is out. But death by lethal injection is too lenient.  There is death by firing squad, which is slightly worse, and death by hanging which is considerably worse.  Gas chamber and 'the chair' are somewhere in the middle. So one approach would be to consider options that are not cruel, but tougher to endure than lethal injection.

Or one could solve the problem by simply stipulating that death by lethal injection shall be punishment enough for all capital crimes, no matter the number of victims or how they are killed.

The latter would be my practical suggestion.

REPLY BY DANIEL M. (8/6):

Thanks! It's indeed tempting to take there to be some "anti-cruelty" moral principle that constrains the implementation of PFC. (It seems to me that this is what you're suggesting.)  One proposal you float is allowing for a spectrum of execution penalties, some "tougher to endure" than others, to accommodate the fact that some capital crimes are worse than others – yet while avoiding cruelty. You also float the idea of stipulating that one kind of punishment is "punishment enough" for all capital crimes.

Either proposal seems promising as a way of honoring both PFC and an anti-cruelty principle. However, I think they also weaken, or at least complicate, the PFC-based case for the death penalty. This may be more clear with the second proposal. If some kind of punishment is "punishment enough", that implies that we can't simply use PFC to infer, from someone's deserving to die, that the state is morally required to bring that about. For on this proposal we're granting that PFC doesn't require the state to always give someone the full extent of what he deserves. So it seems something further is needed to take us from PFC to the rightness of the death penalty.

RESPONSE:

Suppose Ali cuts the throat of only one innocent Christian while Murat cuts the throats of a thousand innocent Christians.  My second proposal implies that some non-cruel form of C. P.  is punishment enough for both jihadis. This of course is counterintuitive.  For if the punishment must be proportional to the crime, then it would intuitively seem that the penalty for the second jihadi ought to be more severe.  Intuitively, Ali gets what he deserves whereas Murat gets far less than what he deserves.

On the other hand, we cannot jettison the PFC principle. A just punishment for a crime must correspond both in quality and quantity to the nature and extent of the crime.  What exactly this 'correspond' comes to is part of the problem.

One thing to note is that we have already modified PFC to disallow the raping of the rapist, the gouging-out of the the eye of the eye-gouger, the crucifixion of the crucifier, and the burning down of the house of the arsonist.  Otherwise PFC is just the lex talionis in its crude "eye for an eye" form. So we have a precedent for modification. We simply take it a step further if we say that the capital punishment of the mass murderer should be no different in quality than the capital punishment of one who commits only one murder.

We must also bear in mind that just punishment must respect both the dignity of the person punished and the dignity of the punishers. Execution by torture degrades both the object and the subject of the execution.  C. P. is morally permissible only if it does not degrade the object or the subject of the penal procedure.

If I understand Daniel's question, he is not asking whether C. P.  is morally permissible, but how it could be morally obligatory if it is not morally obligatory that Murat the mass murderer in my example receive a worse penalty than Ali the one-time murderer. It is not clear to me why I can't just say that PFC does the trick provided it is hedged by the anti-cruelty/anti-degradation principle.

I have said more than once that justice demands C. P. in certain cases. That implies that C.P. is morally obligatory in certain cases. One could also hold that C. P. is morally permissible but not morally obligatory.  But the main battle, I think, is between those who maintain that C. P. is never morally permissible and those who maintain that it is sometimes morally obligatory.

In my various defenses of capital punishment (see Crime and Punishment category) I often invoke the principle that the punishment must fit the crime.  To my surprise, there are people who confuse this  principle, label it PFC, with some barbaric version of the lex talionis, the law of the talion, which could be summed up as 'An eye for an eye, a tooth for a tooth.'  The existence of this confusion only goes to show that one can rarely be too clear, especially in a dumbed-down society in which large numbers of people cannot think in moral categories.  Recently I received the following from a reader:

If your argument is that the punishment must fit the crime, what about cases of extreme cruelty (Ted Bundy, e.g.)? Should the state have tortured him? Of course not, that would be inhumane. What makes this different from the death penalty?

This question shows a confusion of PFC with the 'eye for an eye' principle.  Everything I have written on the  topic of capital punishment assumes the correctness of Amendment VIII to the magnificent  U. S. Constitution: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments imposed." (emphasis added).

The exact extension of 'cruel and unusual punishments' is open to some reasonable debate.  But I should hope that we would all agree that drawing and quartering, burning at the stake, crucifixion, the gouging out of eyes, and disembowelment are cruel and unusual.  And here in the West we would add to the list the stoning of adulterers, the cutting off the hands of thieves, the flogging of women for receiving a kiss on the cheek from a stranger, genital mutilation, and beheading.

So PFC does not require the state-sanctioned gouging out of the eye of the eye-gouger, or the raping of the rapist, or the torturing of Ted Bundy, or the beheading of the beheader, or the poisoning by anti-freeze of the woman who disposes of her husband via anti-freeze cocktails.  ("Try this, sweetie, it's a new margarita recipe I found on the Internet!")

PFC is a  principle of proportionality.  The idea is that justice demands that the gravity of the punishment match or be  proportional to the gravity of the crime.  Obviously, a punishment can 'fit' a crime in this sense without the punishment being an act of the same type as that of the crime.  Suppose a man rapes a woman, is caught, tried, convicted, and sentenced to a night in jail and a $50 fine.  That would be a travesty of justice because of its violation of PFC.  The punishment does not fit the crime: it is far too lenient.  But sentencing the rapist to death by lethal injection would also violate PFC: the punishment is too stringent.

Now consider the case of the man Clayton Lockett — a liberal would refer to him as a 'gentleman' — who brutally raped and murdered a girl, a murder that involved burying her alive.  His execution was supposedly  'botched' because ". . . lethal injection has becoming increasingly difficult after European pharmaceutical companies stopped exporting drug compounds used for the death penalty in line with the EU outlawing of executions . . . ." I am tempted to say: if at first you don't succeed, try, try again.

Death is surely the fitting punishment for such a heinous deed. If you deny that, then you are violating PFC.

But if death is the appropriate punishment in a case like this, it does not follow that the miscreant ought to be brutally raped, tortured, and then buried alive.  That would be 'cruel and unusual.'  Death by firing squad or electric chair would not be cruel or  unusual.

Now either you see that or you don't.  If you don't, then I pronounce you morally obtuse.  You cannot think in moral categories.  You do not understand what justice requires. At some point there has to be an appeal to moral intuition, and only some of us have sound moral intuitions.

The Epistemological Argument

The first argument contra could be called the 'epistemological' argument or the argument from ignorance: it can't be known with certainty that one accused of a capital crime is guilty.  The argument sometimes takes this enthymematic form:

P2. Capital punishment is sometimes inflicted on the innocent.

Therefore

C. Capital punishment ought to be banned.

But this argument is invalid without the auxiliary premise:

P1. Any type of punishment that is sometimes inflicted on the innocent ought to be banned.

In the presence of (P1) the conclusion now follows, but  (P1) cannot be accepted. For if we accept it, then every punishment ought to be banned. For every type of punishment  has been at some time meted out to the innocent.  Obviously, to be found guilty in a court of law is not the same as to be guilty of the crime with which one has been charged.

Our first argument, then, suffers from probative overkill: it proves too much. I reject the argument for that reason, and you ought to too.

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.  At this point liberals will often say things that imply that their real objection to capital punishment is that it is capital.  Well, yes, of course: it has to be. 

For the punishment must fit the crime, and anything less than capital punishment for certain crimes violates the self-evident moral principle that I put in italics.  Justice demands capital punishment in certain cases.  If you don't agree, then I say you are morally obtuse.  On this issue which divides Right and Left either you see that justice demands capital punishment in certain cases or you are morally blind. End of discussion.  To argue with the morally blind is as pointless as arguing with the color-blind and the tone-deaf. Such people need to be defeated by political means. There is no point in further discussion with them.

The Consistency Argument 

Another argument repeatedly given against capital punishment is that it involves doing to a person what in other circumstances would be deemed morally wrong. We could call it the 'consistency argument.'  The argument is that, since killing people is  wrong, then the state's killing of people is also wrong. The trouble with this argument, however, is that it, like the preceding argument, 'proves too much.'  

For if the argument were sound, it would show that every type of  punishment is impermissible, since every type of punishment  involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes.  (Of course, I am assuming the moral legitimacy of the state, something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

The state is a coercive entity that limits the liberties of individuals in all sorts of ways.  It has to be coercive to do its job.  If you hold that the state is practically necessary and morally justifiable, then you cannot reasonably balk at the state's killing of certain of its citizens in certain well-defined circumstances.

The main purpose of the state is to protect life, liberty, and property. It cannot do this if it does not have the power to punish those who take life and liberty and property.

If justice demands the execution of certain miscreants  then this justice must be administered by some agency.  It had better be an agency dispassionate and impartial hedged round by all sorts of rules and safeguards. Otherwise vigilantism.  The job falls to the state.

The Cost Argument

And then there is the 'cost' argument.   The idea is that capital punishment is not cost-effective. It is claimed that the benefit to society does not outweigh the cost. A utilitarian might be able to rig up such an argument, but I am not a utilitarian. The issue is one of justice. Justice demands capital punishment in certain cases, and it doesn't matter what it costs, or whether there is any benefit to society, or even whether there is any society to benefit. Recall Kant's last man scenario from Metaphysics of Morals, Part II (emphasis added):

[6] But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal. His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable. Even if a civil society resolved to dissolve itself with the consent of all its members–as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world–the last murderer lying in prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.

In any case, there is nothing necessary about high costs. They could easily be reduced. A limit could be set to appeals — and ought to be set to them. Endless appeals make a mockery of justice. And if   malefactors were executed in a timely fashion, the deterrent effect would be considerable. Thus a fourth argument, the 'no deterrence' argument, is also worthless in my opinion.  Apart from the suicidal, people love life — criminals included.  Swift and sure execution for capital crimes could not fail to have a deterrent effect.

I will add that if it could be shown that in some jurisdiction the capital penalty was not being applied fairly and justly (due to prejudice against people of Middle Eastern descent, let us say), then I would support a moratorium on the penalty in that jurisdiction. But this question is distinct from the question of principle.  That alone is what I have been discussing.