1. Aquinas

• Recall Aquinas’s reasons for us obeying the community: we are parts of the community.
• Aquinas’s justification of capital punishment (c.p.) is along the same lines.  It is OK to cut off a gangrenous limb to save the whole of the body.  Likewise, it is acceptable to cut off a person who is “dangerous and infectious to the community”.
• Only people in authority may do it.  While we all should try to benefit the community, insofar as we are the equals of others, we do not have the right to impose harm on them for the sake of the good of the whole.  Only those who are charged with the good of the community as a whole may do so.  Each of us has a certain job as a part of society.  Likewise, there are those whose job is to coordinate whom harms may be imposed on.
• Objection: Don’t we all have the right to impose small harms on other people?  If someone I know has betrayed his best friend, don’t I have the right to break off my relations with him in order to send him a strong message that this is unacceptable behavior?
• Response 1: But in such a case, there is no intention to cause overall harm to that person.
• Response 2: There is a qualitative difference between killing someone and causing lesser harms.  In killing someone, one is irreversibly expelling her from the community.  It makes some sense to suppose that only someone who has the care of the community as a whole in her charge should be able to decide who is allowed to be a part of the community.
• Aquinas’s view, thus, is that c.p. is justified by protecting society.  Aquinas does not explain how the protection works, but we can identify at least three ways:
• The criminal once killed can no longer engage in crime.
• The criminal once killed can no longer entice others into crime (by example, word, glamour, etc.)
• Deterrence: Potential criminals are scared off.
• Objection to Aquinas’ view: If we are but parts of the whole, this suggests that a society can sacrifice a part for the sake of the whole.  Thus, it seems, if doing medical experiments on some innocent segment of the population would help the whole to survive, then such experiments would be acceptable.  Likewise, it seems, if there was a terrible disease in some city and the only way we could stop it by spreading would by nuking the city, this should be acceptable.  Aquinas, however, does not think it is OK to kill innocent people to save lives.  So, what can he say in his own defense?
• Possible response 1: Aquinas, unlike van der Haag, is not so much concerned with protecting lives—after all, he never says this is only applicable in the case of murder—but with protecting the moral fiber of society.  We are a society, something whose purpose is the fulfillment of human lives, rather than a herd whose purpose is the mere survival and reproduction of the members.  An unrepentant criminal is someone whose own life is led in a way contrary to the good.  Killing him does not—the argument might claim—do harm to society as something whose purpose is the fulfillment of human lives since the criminal’s life was, as far as we can tell, not going to be fulfilled.  On the other hand, killing an innocent person does directly harm society, because a part of the purposes of that society is the fulfillment of the life of this innocent person, a purpose directly harmed by the killing.
• This response, however, would only apply in the case of an unrepentant criminal.
• Possible response 2: But even a repentant criminal is continuing to harm society in respect of the main point of human society, a flourishing human community, because his being unpunished, or not punished severely enough, provides a certain kind of encouragement to crime to others.
• Possible response 3: The reason for killing the criminal is to protect society, just as the purpose of law is to further the public good.  But in both cases, that reason is not enough: there is a further constraint on the action, namely that one be acting in justice.  Even if it would further the public good to ordain that all blue-eyed people be pressed into slavery, it would not be just.  Thus, doing medical experiments on people is not acceptable, not because it doesn’t serve the public good, but because it is not just.  The harm imposed is unfair.

2. Conway is also focused on the deterrence account of c.p.  Unlike in Aquinas, the concern in the Conway piece is with protecting innocent lives, not producing a virtuous community.  Thus, the Conway piece only deals with the case of murder.  Conway is responding to van der Haag’s arguments.

• The central question for Conway is whether deterrence works.  Conway argues that we have no evidence that it works.
• The preference argument: Criminals prefer life imprisonment (l.i.) to death.  Hence, death deters more.
• But, maybe, many murderers are not sufficiently rational to care, and those who are sufficiently rational would be deterred by l.i.
• Conway: Moreover, there may be a threshold beyond which there is no further deterrence.  Suppose Country A decrees that for murder you get 23 years in jail and Country B that you get 24 years in jail.  Any criminal will prefer 23 years to 24.  But would it make any difference with respect to deterrence?  One doubts it.
• A further argument not in Conway’s piece.  Many murders are committed by young people who do not think of their own death—who act as if they were immortal.  Such a person might be more deterred by l.i. than by c.p.
• Or consider the fact that if a doctor told us that our arms are gangrenous and the only way to save our lives was by having them both amputated.  Most of us would go for it, I think.  But it does not follow that amputation of both arms would be less deterrent.  In fact, one imagines that the horror of it might deter many people much more than death, because it is a much more down-to-earth horror, something more imaginable than death.  Likewise, l.i. might be more imaginable than death, and hence more horrible.
• Van der Haag argues that we need to look at it as a wager.  Do we take the risk of more innocent people dying or do we take the risk that we unnecessarily killed some criminals?  Either way, we are gambling.
• However, Conway notes that this is misleadingly put.  For it is certain that with c.p. we will kill the criminals.  And we kill the criminals for the sake of a quite uncertain outcome.  If we do not kill the murderers, we are risking the lives of innocent people, but we are certain to gain a benefit, namely that the murderers live, and the life of murderers still has a value. 
• Further, in fact we do not really have any real evidence that c.p. would save the lives of innocent people, any more than that tickling murderers’ feet would save lives.  Given the absence of such evidence, we are causing a certain bad effect for the sake of a benefit of which there is no evidence.  And this is surely unacceptable.

3. One of the main moral views nowadays is virtue ethics.  This is inspired by Aristotle’s insistence—we can see a similar thing in Socrates—that human flourishing is the constant exercise of virtue.  The purpose of life according to virtue ethics is to become virtuous human beings and to live virtuously.  Aquinas’ apparent focus on the human community as a community of virtuous human beings—as something endangered by vice and crime—marks him as at least sympathetic to this.

• But now note that the above considerations have all neglected one class of people.  We looked at criminals and their potential victims.  But there is a third relevant class of people: executioners (both the people who actually pull triggers, flip switches, etc., and the judges who pass death sentences).  These people have killing fellow human beings as their job.
• Moreover, it is not a matter of killing human beings who are actively threatening innocent people.  Rather, the executioners kill helpless human beings. 
• The concern now is two-fold.  (a) Could a virtuous person do this?  (b) Would doing this help tend to make and keep one a virtuous person?
• If c.p. is in itself morally acceptable for the reasons that Aquinas or van der Haag give, one could probably imagine a virtuous person performing it, a person whose will is focused on the good of the community, etc.  So the answer to (a) might be positive if either of these thinkers is right, and if so, then virtue ethics could allow c.p.
• But there is a further question: Would such action tend to help to promote virtue in the executioner?  If on the contrary it would cause harm, then a focus on the promotion of human virtue might make c.p. too risky because of the moral harm to executioners.
• What form might this harm take?
• To make one’s job easier, in killing someone, one is likely not to think of him as a human being.  The kind of brutal treatment that the murderer sentenced to death gets in Decalogue 5 illustrates this.  But a habit of not thinking of human beings as human beings is a very unhealthy one.
• Such killing of innocent people, in cold blood, without any urgency, might help deaden a feeling that we are all fellow humans, that we are all brothers and sisters.  Such fellow-feeling is very important: Empirical data suggests that it is precisely this kind of feeling that led to people rescuing and protecting Jews from the Holocaust.
• This doesn’t mean that c.p. is always wrong.  In a situation where it is clear that people’s lives are being protected—e.g., when executing a homicidal escape artist who has escaped from jail dozens of times in a country where the lock technology is very poor—one can more easily focus on the lives of the people one is protecting, and in doing so, maintain a healthy motivation, one that recognizes that the criminal is indeed a fellow human being, but one who endangers others.