1. 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 den 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
- 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.
2. One of the major 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
- Moreover, it is not a matter of
killing human beings who are actively threatening innocent
people. Rather, the executioners kill helpless human
- 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 den 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.
- Furthermore, if the
justification is deterrence, then the killing is done in order to prevent
other people from committing murder, and so the criminal is used
as an object, is used as an example (pour l’encourager les autres).
- 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
3. But there another kind of justification of c.p., in terms
of what people deserve.
- If I have done you something
good, you owe me, at least, gratitude. The amount of gratitude you
owe me depends on what I have done for you. People who have done good
things deserve rewards, whether praise, or medals, or something
else. If when I was in need you helped me, then there would be something
wrong with me if I did not help you in the future when I was no longer in
need but you were in need.
- Moreover, my rewarding your
good deeds shouldn’t merely be there in order to encourage you to do
similar things later. I should reward your good deeds even if you are
dying and my rewarding you will not lead you to any more of them.
- Nor should this reward be there
merely to encourage others to imitate your example. If that is why it is
there, then somehow you fall off my radar screen: it is not that my
gratitude to you moves me to reward you, but it is considerations
having nothing to do with you and with what you deserve.
You become just a means, a tool of propaganda. In fact, if the
point of the reward is to encourage others, then it follows, absurdly,
that I should reward you if people think you did something virtuous
even if I happen to know you didn’t. (E.g., people think you saved a
drowning girl, but I know that I did it, but I don’t want to brag
about it and to call you a liar.)
- But there is a flip side of
what we deserve. It seems quite natural to suppose that if your good
deeds deserve gratitude and reward, then your bad deeds deserve a negative
attitude on the part of others, and even punishment. Moreover, just as
reward is to be apportioned to virtue, so too punishment is to be
apportioned to vice. The worse your deeds, the worse your punishment
- Just as I shouldn’t reward you
simply to encourage you and others to act similarly, neither should I
punish you simply to discourage you and others from acting similarly. If
that is why I punish you, I am using you as a tool of propaganda—to yourself
or to others.
- Rather, it seems, my reason for
punishing you should be that you deserve the punishment. Just as I
owe rewards to you for your good deeds, out of a recognition that
you did them as a responsible person, so too I owe punishments to you
for your ill deeds.
- Intuitively, if you risk your
life to save mine, I owe it to you to risk mine to save yours, or, if I do
not actually owe it, I have very good reason to risk mine to save
yours—everyone would say that the virtuous person would do that. Well, it
seems that by the same token, if you have taken the life of a member of
society, society owes you death. That is what you deserve.
- This is a retributive
justification of c.p.: the criminal deserves punishment, and that
is the primary reason why she is being punished. The magnitude of it is
set via the lex talionis, the “law of retribution”: an eye for
an eye, a tooth for a tooth, a life for a life (Bible and other
ancient near east texts).
- If the punishment is seen as
something owed to the criminal, as something done to recognize the
criminal as a person who has made choices that deserve consequences, then
it seems the punishment could in theory be inflicted in a way that
respects the criminal’s personal dignity.
- The quick and private c.p. done
in the U.S., without an audience, without much ceremony does not, however,
recognize the criminal’s personal dignity as much. A quick lethal
injection suggests more “getting rid of the criminal” than affirming the
just deserts of her actions.
- A pure deterrence view seems to
say that we should punish people when society would benefit from it. But
suppose that it would benefit society a lot to get rid of
pickpockets, that it would benefit society enough to make it worth killing
pickpockets. Still, this surely does not make killing pickpockets right.
The retributive view sets a limit on punishment: no more than an
eye for an eye, a tooth for a tooth, a life for a life.
- A consequence of this account
of punishment is that it suggests that it can be acceptable to punish
criminals who have changed. For it is acceptable to reward someone for
doing X even if she later repudiated this action (e.g., she saved a
policeman’s life, but later joined a radical political group which says
that policemen are pigs whose lives should not be killed; yet, we can
reward her for having saved that life).
- Does society have the right to
impose such penalties given that society itself is guilty of many things,
such as neglect of the poor? (Cf. Jesus saying that he without sin should
take up the first stone.) This also suggests another danger to the moral
life of the executioners: it might make them self-righteous.
- Does this mean we should rape
rapists and torture torturers?
- Response: The punishment is
supposed to reflect the dignity of the criminal, as someone whose choices
matter. Raping people dehumanizes them, and hence does not reflect their
dignity. Perhaps torture does the same thing. So rape and torture are
not owed to the criminal, for we owe to no one to dehumanize them. It is
only a dignified killing that we can owe. Moreover, as a matter
of fact, rape and torture damage the character of the people who do it,
and hence do damage to the human dignity of the executioner.
- Surely we can show
mercy. But according to the retributive view we owe punishment to
- Maybe we do not strictly
owe it. After all, if you save your life at a risk of yours, maybe it is
not immoral for me to not save yours at the risk of mine. After
all, it isn’t as if we entered into a mutual life-saving contract by your
saving my life. Your saving my life was a gift to me. A real gift
does not absolutely require a return. But it does give a good reason
for a return, even if this reason is not conclusive. Thus, by analogy,
maybe we have good retributive reason to punish criminals, but
still there may be reasons against it. Clemency could, especially if the
criminal has changed her life, give one such a reason.
- But this last consideration
suggests that perhaps even though retribution gives a strong reason to
kill murderers, other reasons might override that. For instance, the
value of the murderer’s life might override this. This kind of a thing
might lead to a hybrid account on which both retribution and
deterrence would be needed to justify c.p. Here’s one such account.
Retribution gives us a good reason to kill criminals. But the value of
the criminal’s life and the dangers to the character of the
executioner give good reason not to kill criminals, indeed reasons that if
they were all there is would override the retributive reason. But
the value of deterrence then overrides these last considerations.
- That is, if the
deterrence account works, if no lesser penalty could do the job.
But I think a lesser penalty could do the job in our society.
(Maybe not in a poorer society which cannot afford to keep people in
jail.) Hence, on my view, the hybrid account would not permit c.p.
in our society: retribution would be served by c.p., but the disvalue of
death would give one reason not to engage in retribution.