Capital Punishment, Retributive Justice, and the Right to Life

This morning my article on the death penalty was published at "The Bell Towers."  Head over there to take a look at what I have to say.  

I started writing the piece back in December, after reading Thomas Friedman's op-ed in the New York Times.  I've found that many commentators on both the Left and the Right advocate for the elimination of the death penalty.  They frequently base their claims on empirical data and the efficacy of deterrence.  My judgment as to the morality of execution is grounded in a deontological morality.  I believe we can (and should) justify punishment for criminals in retribution, viz. based on moral desert.  Of course, consequentialism is useful in "fleshing" out our concerns and aspirations for how a criminal justice system should be designed, etc.  And concerns about deterrence, incapacitation, and rehabilitation may even need to be part of any responsible retributive theory.


The original purpose of the article was to counter the argument that "pro-lifers" need to advocate for the elimination of the death penalty.  As I explain, I don't see these two ethical dilemmas -- abortion and the execution of criminals -- as analogous.  I try to make the case that opposing abortion and supporting the death penalty are not contradictory positions.


Sidebar: I've always been concerned by the perception of many Catholics that the Church teaches the death penalty to be morally and theologically "wrong."  Officially, the Church has not changed its traditional teachings on the matter, though I do believe that there has been a definite change in emphasis.  John Paul II, of blessed memory, argued, for example, that the death penalty was an affront to human dignity.  Yet, despite what many American Catholics think, the Holy Father didn't actually advocate eliminating the practice.  (I have a few problems with Evangelicum Vitae's discussion of capital punishment, some of which I hint at in the "Bell Towers" piece.)


After my friend, Kathleen Hunker, wrote an article about the possible moral objections to executing James Holmes, I scrapped some of what I was doing with my argument and tried to draft something of a response to her claims.  I like what I've written, but I warn you: the article is only cursory and is not meant to be an exhaustive examination of the moral and legal issues implicated in any discussion of the death penalty.  


The article does do a fair job at representing my own position, but I think I could have more heavily emphasized the practical concerns of having the State execute individuals.  As a libertarian, for example, I highly distrust the State.  Indeed, I like to consider myself something of a "philosophical anarchist," although I suppose I'm actually a "minarchist."  I find it hard to accept the idea of completely discarding the criminal justice system.  (Mind you, drastic reform is needed!)  Together with my retributive theory of justice, I'm something of an outlier among libertarians on these topics.


Sidebar #2: Murray Rothbard, in The Ethics of Liberty, did speak of the possibility of a death penalty in an anarcho-capitalist system of competing, voluntary legal orders.  I won't go into his argument here, but he basically conceptualizes the death penalty as being a sort of maximum punishment in certain instances. I agree with Rothbard.  As I try to imply in the article, the prudent use of execution does not require its employment in all cases.  Just because someone is deserving of death, whether morally or legally, does not mean they should be so sentenced.


I find it an entirely "separate" question as to whether the criminal justice system is legitimate, then as to whether we can justify the death penalty.  I end the article with a caveat, which encapsulates my point here: "[W]hen those criteria [for applying the death penalty] have been met, and the State’s justice system has been shown to have acted legitimately and fairly, and we are as certain as is humanly possible that guilt has been demonstrated, then I fail to see any convincing moral or philosophical impediment to carrying out an execution." (emphasis added)  Insofar as the prosecutor, the judge, and the jury -- and any other relevant political institution -- has acted in such way as not to cast doubt on a criminal justice system's legitimacy, i.e., to call into question our legal and moral obligation to obey and abide by its results, than execution can be implemented.