The Death Penalty: Principles

“CONCERNING CRUELTY AND CLEMENCY, AND WHETHER IT IS BETTER TO BE LOVED THAN FEARED COMING now to the other qualities mentioned above, I say that every prince ought to desire to be considered clement and not cruel. Nevertheless he ought to take care not to misuse this clemency. Cesare Borgia was considered cruel; notwithstanding, his cruelty reconciled the Romagna, unified it, and restored it to peace and loyalty. And if this be rightly considered, he will be seen to have been much more merciful than the Florentine people, who, to avoid a reputation for cruelty, permitted Pistoia to be destroyed. Therefore a prince, so long as he keeps his subjects united and loyal, ought not to mind the reproach of cruelty; because with a few examples he will be more merciful than those who, through too much mercy, allow disorders to arise, from which follow murders or robberies; for these are wont to injure the whole people, whilst those executions which originate with a prince offend the individual only.” Machiavelli, “The Prince”

There are few issues in the US today which produce sillier and more passionate arguments than the Death Penalty. Passion and silliness are tied together in human nature. The more strongly people feel about something the less rational their discussion of it is apt to be.

It is a favorite tactic in Death Penalty debates to use emotionally charged rhetoric. Opponents say that the State in executing an accused murderer is no different than the murderer. If this is true, then when the State fines someone for a crime it is no different than a thief. If the State is a not a thief when it levies fines, it is not a murderer when it executes a killer. An action taken in response to a similar action is not the same as an action taken without just cause. Taking a life is different from levying a traffic fine, but premeditated murder is different from a parking violation.

The Death Penalty has been considered moral and just throughout most of human history. Proportional Retribution is fundamental to that sense of Justice which is inherent in Human Nature. There is nothing immoral about the Death Penalty.

The proponents of the Death Penalty might well maintain that not executing murderers shows a real disrespect for the value of human life. A human life is precious, fines or prison time are not equal to a human life. To not require the death penalty for premeditated murder is to cheapen the value of human life. Only a life for a life can send the message that the State truly values and guards the lives of its Citizens. Thus the value of human life can be used to defend the Death Penalty with the same emotional impact that it can be used to attack the Death Penalty. To not require a life for a life cheapens human life at least as much as requiring a life for a life makes the State a murderer.

There is a principle involved in this issue which is never introduced into discussions of the Death Penalty. The reason it is never introduced is that the nature of the State is improperly understood. The State is merely the formal structure of the Social Contract and it has no right to take the life of a Citizen unless it is acting on behalf of other Citizens. There are two manners in which it can be acting on behalf of one or more Citizens. It can be exacting retributive justice on behalf of one or more Citizens. It can be acting to deter future criminal acts and thus protect the Citizens.

Death Penalty as a Deterrent

The question of the deterrent effect of the Death Penalty is equivocal. There are those who maintain that the threat of death will deter more strongly than any other threat. Death is a word freighted with an emotional significance unmatched by any other word in our language except possibly its antithesis Life. The threat of Death will deter criminals better than any prison sentence. Or will it?

People do foolish things all the time. They drink, smoke, drive recklessly, have irresponsible sex, and watch daytime TV. With the possible exception of watching daytime TV all of these activities have a threat of death attached to them as great or greater than the likelihood that anyone will be executed if caught.

If the threat of a slow agonizing death from lung cancer does not deter people from smoking why would the threat of a painless and quick death from lethal injection deter them from murder? If the threat of a slow agonizing death from AIDS related illness does not deter people from irresponsible sex, why would the threat of a painless and quick death from lethal injection deter them from murder?

Death is a part of life. As hunter/gatherers humans were surrounded every day in a thousand ways with the threat of death. If the remote possibility of dying for doing something was sufficient to deter people, then our ancestors would all have starved to death in caves out of fear. The constant threat of death is something humans evolved living with. It’s deterrence effect is highly questionable. Human beings are really pretty tough, tough emotionally, tough physically, and prepared by evolution to take chances and ignore the threat of death on a fairly routine basis.

Criminals are not generally the smartest people in the world. They tend to believe that they are going to get away with what they are doing. They are the worlds greatest optimists. They do not think about the long term consequences of their actions.

To quote John Locke in his “An Essay Concerning Human Understanding“, published in 1690,

Mr. Locke goes on to develop this thesis discussing why people go on doing things which they know are bad for them. You could describe deterrence almost mathematically. All actions which society desires to deter are attractive to the person being deterred for some reason. The deterrent is a negative which society attaches to the action to counterbalance the perceived good that the actor would receive. Mr. Locke notes it is not the long term greater good which generally determines action but the most pressing discomfort or desire.

If a small but certain desired good is balanced against a distant, uncertain but extreme bad, it is likely that the small good will overcome the uncertain or distant bad in the mind of the actor.

Even if death is the penalty for stealing cabbages, hunger will still cause people to steal. On this basis desire and fear would be modified by immediacy, likelihood and magnitude. The immediacy would have a greater effect on action than likelihood and likelihood would have a greater effect on the actor than magnitude. This does not look good for death as a deterrent. Throughout most of history, societies have used punishments which are barbaric by modern standards. Law enforcement was brutal, cruel, and frequently involved incredible torture. It was also uneven, unreliable, and not systematic. The threat of brutal punishment has never successfully deterred crime. Modern societies have much more systematic law enforcement, the sight of police cruising the streets is a better deterrent than the distant threat of death by slow torture. The apparent likelihood of being caught is a greater deterrent than the specific punishment involved for the crime. The deterrent value of the Death Penalty is, at best, equivocal.

The State as Agent of the Citizen

This leaves the issue of the State executing a Citizen as the agent of one or more Citizens injured by his actions. This is clearly moral, just, and fair, if the Citizen involved desires that the Death Penalty be invoked. The State frequently executes Citizens when the survivors of their victims, the Citizens directly injured do not approve of the Death Penalty for moral or religious reasons. This is absurd. In the absence of clear proof that the Death Penalty is an effective deterrent the State cannot execute people except as the agent of its Citizens. If the concerned Citizens do not approve of it, the State cannot possess a legitimate authority to do it. The State can only act in this manner if the concerned Citizens accept the Death Penalty as legitimate. In all instances where the Death Penalty is involved the injured Citizens should have a final say as a final court of appeal. Their refusal of the Death Penalty should convert the sentence to life imprisonment without parole.

It is important that it should be obvious that the State is not acting on its own, that it applies the Death Penalty only as an agent of its injured Citizens. Of course, if the dead Citizen has no immediate relatives to speak on his behalf, the State may act in their place. Likewise the State must punish crimes to deter other criminals and thus the power of the Citizen to interfere with that punishment is limited to extraordinary circumstances like that of the Death Penalty where a possibly lesser penalty is substituted for an irrevocable penalty.

This principle is novel, and could easily be abused by persons acting in conspiracy where one kills a third on behalf of the second, and is forgiven by the second by prearrangement. Thus the strict limits on the idea applying only to commuting a death sentence to life imprisonment without parole.

As a principle it is useful and should be enacted into law, the sight of ordinary Citizens exercising a final authority in a matter as grave as this of life and death will help to instill in Citizens a sense of their status with respect to the State and remind them of their proper relationship to the State. The State can only act as an agent of its Citizens. The Death Penalty is an opportunity to present this reality to public view in a powerful way. It also make the punishment comprehensible and humanly meaningful. It reminds the observers and potential criminals that the State is not acting arbitrarily, it is punishing on behalf of the injured. It is reinstating the status of the injured sending a message that you cannot Dis a law-abiding Citizen.

This is in keeping with the principle of laws helping to promote the sense of Citizenship and not a sense of Subjection. The death penalty exercised over the protests of persons with religious objections to it has the opposite effect, making the State appear the master not the Citizens.