The Death Penalty: Is There a Dispensable Mob Boss?

A small group, only three of us. We had no planned agenda. There was a question about Aristotle’s four causes, but I wanted to put off trying to talk about them until I had done some more research. So instead, we decided to discuss some ethical issue. On a whim, I suggested the death penalty. More specifically, I asked the question: is it ethical for a society to put to death one of its members, and if so, when?

To figure this out, we began by examining some of the common justifications for the death penalty. Turns out, the death penalty is cheaper than keeping someone alive for life in prison. However, the cheapest option is not always the “right” option. Lower cost does not justify something ethically.

We moved on to the use of the death penalty as a punishment. Is the death penalty a proper punishment for murder, and is it justified to carry out such punishment? (I separate these two questions because even if the death penalty is an appropriate punishment for murder, that does not necessarily justify a society to enact it.) “Punishment” seemed to suggest some different interpretations. One potential definition is that “punishment” is something that makes someone feel bad for their actions. Obviously, since the death penalty takes away one’s ability to feel entirely, it doesn’t really function to inspire guilt or create bad feelings for someone who has committed the action (other than, perhaps, their anguish in prison as they await the carrying out of their sentence–more like a torture technique).

Alternatively, it might be justified by its function as a deterrent: the threat of the impending punishment might be such that it causes an agent to alter his or her course of action. This had some issues. The strength of this particular threat, and thus its effectiveness as a deterrent, appears to come down to one’s personal beliefs about death. The more afraid one is of death, the more effective the threat of death should be as a deterrent. If you are afraid of going to hell, then you will not want to be sent there. However, if you believe that you will go to heaven, you might be less likely to fear death. Similarly, if you are an atheist and you view death as merely the cessation of biological activity, then you would have a lesser fear of death than if you were afraid you might go to hell. If you are a radical Islamist and you view the death penalty as a death in battle, or for a cause, you might even welcome it. Thus, its effectiveness as a deterrent is probably limited by a population’s beliefs about what happens after death.

The jury is still out on whether or not societies with the death penalty are statistically less likely to have murders. But even if the death penalty were shown to be an effective deterrent, would that necessarily justify it? More on that later…

Another potential function is as a settling of a score, a payment of a debt, a restoration of the balance of justice. But this also seemed inadequate. If I am a thief, and I steal money from someone, I can repay the debt. But if I am a murderer and I take someone’s life, I cannot give that life back. Furthermore, the taking of my life by capital punishment does not bring the scales back into balance, it simply adds to the body count. Capital punishment doesn’t seem to settle a score in the same way as other punishments or acts of retribution. (But even these have their problems. If I steal Steven’s car, I can return his car or pay him a sum of money equivalent to it–but if I steal Steven’s car on a day when Steven has a very important job interview, making him unable to go, I have not only robbed him of his car, but I have also robbed him of the opportunity to get a very important job. And there is no way to repay the debt that I owe him on that score, even if I return the car, or two cars, or three.)

Some would argue instead that it provides consolation for the victims, even if it is not a proper restoration of the balance of justice. Well, it might, but that isn’t necessarily an ethical justification. Just because something provides comfort or consolation, even if it did function as an effective restoration of the scales of justice, or as a deterrent, doesn’t mean it’s right. A common justification is “an eye for an eye”–you take a life, you lose your own. But we don’t do that for other crimes. We kill killers, but… we don’t rob robbers. We don’t rape rapists. How is it that we can say: killing is wrong for a citizen but okay for the government, while rape, for instance, is wrong for both the citizen and the government? Where does the double standard start and where does it end?

Human beings have a strong sense of justice, and the desire to see it done. Punishment can satisfy that desire. We watch TV programs like Game of Thrones and get wrapped up hating certain despicable characters, and then we feel catharsis when they are punished for their misdeeds. We all have a desire to see justice, almost to the point of bloodlust. But there is a problem. Steven used the example of a villain in Bad Boys II–an otherwise “disposable mob boss” who elicits no sympathy, but who has a daughter. When the villain is defeated, or killed (I don’t know, it’s been a long time since I’ve watched Bad Boys II), there is some lingering unease–what happens to the daughter? This raises the question if in real life there are any purely disposable people, like the deplorable characters in Game of Thrones, or if people always have mitigating factors that, if known, would make their death rest less easily with us, like the not-quite-disposable mob boss from Bad Boys II. Does everyone points of sympathy? As such, is it for us to say that they deserve death? We know that most murderers and likewise messed-up people usually have tortured pasts and histories, things that can make us sympathetic to their plight. At what point do we draw the line, and for what crimes, saying: we feel sorry for you, but not sorry enough that we won’t kill you–?

But this raises the broader question of to what extent anyone is responsible for their actions in general. We said that murderers and otherwise messed-up people almost always have some history of trauma, and this could potentially mitigate their responsibility for their actions in some way. But if that’s true, couldn’t it be argued for all of us? Aren’t we all, in not insignificant ways, the products of our upbringings and our backgrounds? And at what point do we stop saying “well, that’s just the way I was brought up” and start saying “yes, that was my fault”? Here it appears that we must either feel sorry for everyone or feel sorry for no one–unless we can identify a point at which someone is or is not responsible for certain actions.

This poses another problem though, because if someone’s action is often out of a person’s control, even more so is the result. For example, we discussed how murder and attempted murder are judged differently–but the problem is, the action was just the same, and the only reason that it turned out differently was likely due to some factor outside of the agent’s control: his lack of experience as a murderer, his clumsiness, accidents that conspired to keep his victim alive. We see fit to judge people on the results of their actions, which are just as much the results of accident as much as (or even more than) their intentions. (For more on this issue, see Thomas Nagel’s “Moral Luck”) Why do we judge someone differently for something that wasn’t their fault?

But the prospect of no longer saying that people are responsible for their actions does not seem like a viable option. (We all know people who shirk responsibility.) So perhaps we should judge someone by his intent, not by his actions. However, this is incredibly problematic for any serious system of justice in society. How do we know someone’s interior thoughts and intentions? “I didn’t mean to speed…”

We discussed negligence: when is not doing something doing something wrong? Here again, there seems to be a double standard. The law seems to indicate that some acts of neglect are reprehensible, while others are not. Neglecting to feed your child is illegal. Neglecting to intervene in a fight (which may lead to a murder) is not.

Somewhere in here, we also discussed the off-chance that a verdict is wrong. Is it excusable for a government to take the life of a citizen if there is a chance, no matter how slight, that its verdict was in error?

This was as far as we got. There is more to say on this issue, but so far we could not find an acceptable justification for the killing of another human being by a government unless it was preceded by a divine command–God ordering that the person should be killed. So many ethical issues seem to run afoul of the “moral luck” problem. And this I believe is where Aristotle’s ethics project led him, although instead of “moral luck” he might call it fate, or tragedy: no matter how virtuous a person’s character, intent, and actions, goodness may still be thwarted by factors outside of the control of human beings.

Next week: the four causes, and is institutional education social engineering?

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