This post is a follow-up on the “Pro Choice and Pro Life” posting of Herb Silverberg. Herb’s thoughtful reflections have added to SO’s offerings, and I am surprised that they have not drawn more comments.
Yesterday there were two executions, one in Texas and one in Georgia.
In Texas, Lawrence Brewer was executed. In 1997, Brewer and two associates kidnapped a man named James Byrd, who had been walking down a country road not far from Jasper, Texas. They beat Byrd savagely, urinated on him, and dragged him to death behind a pickup truck–just because they did not like the color of his skin. After murdering Byrd, who was decapitated when he was slammed into a culvert, Brewer and his pals ditched the mangled body in an African-American cemetery and went to town where they dined on barbecue. At no point afterwards did Brewer express any remorse or regrets or take any responsibility for his crime. Before murdering Byrd, Brewer had been a small-time hoodlum who picked up extra cash by burglarizing the homes of relatives. He made no statement at his execution.
In Georgia, Troy Davis was executed for the murder of a Savannah police officer in 1989. There was no physical evidence linking Davis to the crime. He was convicted on the basis of the testimony of nine eyewitnesses, seven of whom later recanted. Some added that they had testified against Davis because the police had pressured them to do so. Since his conviction, Davis never wavered in his insistence that he was not guilty. Pope Benedict XVI, Jimmy Carter, and many international leaders and protesters urged that the execution be delayed and that the evidence of Davis’s innocence be considered. Georgia proceeded with the execution (Having grown up in Georgia and having lived much of my adult life there, allow me to note that Georgia’s current governor, Nathan Deal, is a moron even by the low standard set by other Georgia governors).
These two cases place the dilemmas surrounding the death penalty in a stark light. On the one hand, I think that our most basic sense of decency is so outraged by the behavior of someone like Lawrence Brewer that it is hard to imagine any penalty short of death that would be commensurate with his crime. Moral reasoning just does not seem possible unless it includes desert as a fundamental category. That is, it seems basic to any sort of moral judgment that we acknowledge that what we do merits reward or punishment depending upon whether it is good or bad, and that degrees of reward or punishment should be commensurate with the degrees of good or bad behavior.
I know that many thoughtful and good people like Herb are opposed in principle to the death penalty. As they see it, the death penalty is not justice, but state-sponsored vengeance. Herb points out that the U.S. keeps some very unsavory company when we consider the countries that have the death penalty (e.g., China, Iran, Saudi Arabia) as opposed to the ones that have outlawed capital punishment. Though I genuinely respect the views of death penalty abolitionists like Herb, I disagree–at least in principle. The reason is that I think that Kant was right about punishment and that Mill was wrong.
John Stuart Mill, being a true utilitarian, held that the infliction of pain, per se, is always bad, and is justified only when the infliction of pain in a given case leads to a greater good overall. Thus, the pain of the punishment inflicted on criminals, per se, is bad, but is justified if necessary to achieve the greatest good for the greatest number. The utilitarian view, therefore, is expressed by the old saying that we hang horse thieves not for stealing horses, but so that horses will not be stolen. That is, the punishment of criminals is justified, not in terms of retribution (which is bad) but in terms of the greater good to society that follows from a system of judicial punishments. Kant, however, made the devastating observation that we are simply using the criminal, treating him as a mere means to an end, if we punish him because we want to deter others, and not simply because he deserves punishment. By using the criminal to teach a lesson to others, we deprive him of his inherent dignity, and violate our duty to treat all rational creatures as ends in themselves rather than as means only.
I think Kant is right on this point. The only way to have a society in which persons are regarded as having the inherent worth and dignity that we each feel that WE are due, is to consider persons as rational agents. Part of what it means to regard someone as a rational agent is to hold him responsible for his actions. To hold someone responsible for his actions is to give him what he deserves–good things when he chooses to good things and bad things when he chooses to do bad things. To punish anyone for ANY reason other than that he deserves it, is to treat him as less than a rational agent. Hence, retribution is the rationale for punishment most consistent with human dignity.
Now, admittedly, considering someone like Lawrence Brewer to be a rational agent seems implausible in the extreme. He was a born loser–a dumb, malignant punk with little education and probably a room-temperature I.Q. He may have been a clinical psychopath. If we say with Kant that we must regard ALL humans as rational agents, then, logically, we have to include the Lawrence Brewers of the world in that “all.” So, really, the idea that all are rational agents is a fiction, yet it is a necessary fiction that we must maintain if we want a society that is livable for the rest of us.
One result of a commitment to viewing all (adult) humans as rational agents is that we will be outraged by the punishment of an innocent person even more than we will be satisfied by the punishment of a Lawrence Brewer. We will insist on being certain that those punished actually deserve it.