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Capital Punishment: A Defense of Justice

The opinions expressed by columnists are their own and do not necessarily represent the views of

Not all that long ago, conservatives, including and especially conservative intellectuals, argued vigorously in favor of the death penalty.  However, along with other several other moral-cultural issues in which they once took an interest, issues like abortion, euthanasia, and “gay marriage,” to note but a few, the topic of the death penalty is one in which contemporary conservatives appear to have little interest.

This is just one of the many crucial respects in which the conservative movement has gone off the rails, for a society that abolishes the death penalty is a less just society for doing so.

Thought it shouldn’t come as news to anyone who hasn’t spent his life in a cave on a deserted island, it bears repeating all of the same:

Monsters live among us. 

Cold-blooded murderers, rapists, terrorists, and torturers—a society that refuses to execute these savage predators is a society for which doing justice, affirming the sacrosanct value of human life, and underscoring the supremacy of law are given short shrift.

The essential justification for the death penalty is retributive. If by extinguishing the truly monstrous we deter others from actualizing their potential monstrosity, then this would be a wonderful thing indeed.  But it would be an additional benefit, not the justification for slaying these human beasts.

Similarly, by executing the criminally wicked, we obviously incapacitate them, preventing them from ever harming again the hair on the head of anyone else.  This too is occasion for the rest of us to express sighs of relief. Still, incapacitation is not and cannot be the rationale for capital punishment.

Nor can there be any moral weight to an argument designed to justify capital punishment on the grounds that it could be cheaper to dispose of a convicted criminal’s life than to care for him in prison for the remainder of his existence.

No, only if a convicted criminal deserves to be executed is it just to execute him, only if the death penalty is a criminal’s just desserts are we justified in administering it to him.

There is one fundamental problem shared by the arguments from deterrence, incapacitation, and economic advantage that militates decisively against them:

They all objectify the criminal.

For as unquestionably detestable, for as truly evil, is the rapist and murderer of children, he remains a person, a subject. Even all of his wickedness is incapable of divesting him of his moral standing by rendering him a mere thing, an object, a literal animal.  And it’s a good thing too, for unless this was the case, we would have no grounds for administering any punishments, capital or otherwise.   

The arguments from deterrence, incapacitation, and economic advantage, while they obviously and inescapably involve depriving the criminal of something of value, namely his life, by harming him, they have nothing to do with punishment.  That harm and deprivation are not morally synonymous with punishment can be gotten readily enough by consideration of the fact that, say, terrorists, while harming and depriving their victims, cannot be said to punish them.

The notion of punishment is inextricably linked to the concepts of wrong-doing and dessert.  To put it another way, the idea of punishment is, logically, entailed by and in turn entails the larger idea of justice. 

This is crucial.  What it means is that while we dispose of things, like automobiles, when they become prohibitively expensive to maintain; use things, like barbed-wire fences, to deter criminals; and incapacitate by killing rabid animals, only persons, beings with intelligence and will, the capability to have chosen differently than they did in fact choose, can be the subjects of punishment, for only persons are moral agents.     

Murderers must be put to death, the 18th century philosopher Immanuel Kant memorably remarked. Even if the members of society were about to dissolve their bonds and go their separate ways, Kant argued, thereby rendering considerations of deterrence, incapacitation, and economics mute, it would nevertheless be profoundly unjust if they permitted the convicted murderers in their midst to live.

The duty to do justice is the duty to give what is owed. In giving to people what they deserve to be given, we recognize their choices.  And in recognizing their choices, we affirm their personhood, their dignity as persons.

We affirm that they are not animals whose murderous acts resulted from impulse or instinct, or combinations of material particles whose bloody behavior was determined by causal forces—poverty, “racism,” child abuse, “mental sickness,” etc.—that were beyond their control.   

In underscoring the dignity of human life by executing those who are guilty of capital offenses, a society at once supplies justice to both the specific victims of the violent criminals whose lives it ends as well as to every other member of society indirectly assaulted by these thugs.

What we commonly call “society” is, more accurately, a legal association, an association whose members are held together by laws. Laws are the terms that distinguish what we refer to as a civil association from other types of association.  Thus, every crime, every act of lawlessness, is a repudiation of the civil association, a machete attack on the tie that binds the associates together.

Every crime is an attack against every citizen.  So, every citizen deserves that criminals, outlaws, be punished proportionally to their crimes.

And those whose attacks against the associates of the legal order are most egregious deserve the harshest of punishments.    

The objection that justice is met by imprisoning for life these bloodthirsty predators fails. By incarcerating, say, a serial murderer for the remainder of his existence, we not only allow him to live; his victims, both those who he harmed directly as well as every other member of society, are now forced to care for him.

This merciless killer now becomes the ward of his victims.

This is not justice. This is gross injustice.  It is cruel.  

To prevent this cruelty, capital offenders, as Kant said, must die.


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