In my previous column, we saw that the practical objection about executing innocent convicts can be solved by heightening the capital standard to guilt beyond any doubt. Now, let’s look at some of the conceptual objections.
Conceptual Objection 1: You cannot teach people that killing is wrong by killing.
What punishment could we assess against criminals that wouldn’t be wrong when done to innocent people?
Is it inconsistent to punish embezzlers with fines? Is it inconsistent to put kidnappers in the liberty-deprived condition of prison? Would we be inconsistent, or merely brutal, to adopt a more Indonesian response to assault by publicly flagellating offenders?
Precisely because every form of punishment is a form of harm to the convicted, the problem with this objection is that it proves too much, indicting all expressions of any justice system. That’s why the proper response to it is to ask why the person advocates anarchism, since only the anarchist view (that all outside impositions upon a person are wrong) is consistent with the principle of this argument.
But that’s probably a bit much for your naïve friend in a casual discussion. Instead, ask him if he also opposes execution because of the risk that the convict is innocent. If so, then he is simultaneously arguing that all killing is wrong and that the killing of innocents is uniquely wrong. Every person who opposes capital punishment because of the risk to innocents affirms, in making that argument, that there is something vastly different between killing those who have done nothing to deserve it and killing those who have. And clearly, this is the distinction that solves this objection.
Simply put, to allege that killing murderers and killing innocent citizens are the same is to deny the distinction between guilt and innocence which is the presuppositional foundation of all law in the first place. If we cannot distinguish between how we should treat lawbreakers and non-lawbreakers, we have much more elementary problems than rationally discussing the validity of capital punishment.
Conceptual Objection 2: It erodes the sanctity of human life.
There are two ways for our justice system to show that something is sacred: by protecting it from violation and by punishing those who violate it. Clearly, in this case, the two are interconnected. Life is uniquely precious, which is exactly why taking the life of one who deliberately takes innocent life is the only way to affirm life’s sacredness. Rather than proclaiming the preciousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment.
When something is sacred, that does not mean that it cannot be violated. Rather, it means that it must be violated only in the rarest of cases and only in the most deliberate of ways. The almost absurd solemnity with which we execute people in this country is not a defect of our system, but a testament to the importance we attach to human life. Instead of eroding the sanctity of life, execution practiced with such regard actually affirms it.
Conceptual Objection 3: You can’t be pro-life and pro-capital punishment.
First, it’s a mistake to assume that all pro-lifers base their view on the idea that abortion is homicide. While this is common, there are other grounds for opposing abortion. Nonetheless, I’ll grant most pro-lifers do oppose abortion for this reason.
According to this objection, it is inconsistent to oppose the killing of a human fetus while favoring the killing of a human murderer because one must treat all killings the same way.
What so offends us about abortion is the taking of an innocent life, the destruction of someone utterly vulnerable and guilty of no wrong. Executing a murderer doesn’t elicit the same response because we are, again, making the simple distinction between the innocent victim of a crime and the guilty perpetrator of that crime. Since this distinction is at the heart of our justice system, the person who can’t make it is back to equating being stolen from with being fined, and being kidnapped with being incarcerated, equivocations that make a life sentence in prison every bit as problematic as execution.
I am convinced that even those who grieve the death row convict do not view his death as a tragedy equal to that of his victim. In fact, I’d have trouble taking someone seriously who told me that his horror at an executed murderer was equal to his horror at the original murder itself. This difference of reaction acknowledges a distinction even at an emotional level. It may not seem big enough to justify execution, but just getting opponents to admit the difference might start to erode their notion that the two are morally indistinguishable.
Furthermore, if the idea is that we must oppose all homicides if we oppose any, then we might reasonably demand that such opponents also protest every form of warfare or self-defense. Obviously, most death penalty opponents are not pure pacifists, which makes them no less inconsistent on this issue than they allege pro-lifers to be. I only point this out to show that many capital punishment opponents are skewered by their own willingness to distinguish wartime and self-defense homicides from others.
I am willing to concede that it would be more philosophically rigorous and less confusing to use the more cumbersome label “pro-innocent-life.” But we all know that rigor often yields to pith in modern discourse. Nevertheless, there are clear lines distinguishing abortion from capital punishment which this objection colors quite sloppily across.
However, as a point of practical concern, ending abortion is far more important to me than continuing to execute. I’d certainly rather save a few million innocent than kill a few hundred guilty. So, if I thought that opposing capital punishment would make me look more consistent to those who can’t make such distinctions and thus gain their support for ending abortion, I might well consider it. But I’d like to hope, perhaps naively, that we can get both issues right without pandering to such superficial thinking.
In the next column, we’ll look at the concerns that execution is unconstitutional, barbaric, motivated by hate, and degrading to the executioner.