Why would Anyone Support Capital Punishment?(Part D) Andrew Tallman In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8 Amendment's ban on cruel and unusual punishment. So with New Jersey and the un on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old he will stop using profanity in his sketches. But the official decision is still noteworthy, as is the fact that New Granted, New Jersey had not actually executed anyone in 45 years, so this was a bit like Bill Cosby announcing t Mexico, Montana, and Nebraska all came close to doing the same thing this year. In the face of the seemingly unstoppable modern sensibility, why would anyone continue to support executing murderers? There are five possible objectives of any criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Starting with these values, let us explore the differences between the two alternatives capital punishment and life in prison without the possibility of parole capacitation Incapacitation is the goal of making it physically impossible for the criminal to commit further crimes against his fellow human beings Clearly, both capital punishment and life in prison without the possibility of parole fully incapacitate criminals with respect to the general society. The only exception is if the prisoner escapes, but given that there is such a lor between conviction and execution that death row becomes a de facto prison sentence until then, there is leg e delay distinction here than initially appears. But, for the sake of argument, let us say that once the two paths diverge, lip-whip)is 99-plus percent incapacitation. As an advocate of the death penalty, I am not interested in qu g o execution is 100 percent incapacitation and life in prison without the possibility of parole or LiPWPP(pronounce bout numbers, so I will grant that incapacitation is the same for both alternatives Within the prison community, however, things are not so clear. Unless LiPWPP is upgraded to permanent solitary confinement, such prisoners will still be a threat to guards and other prisoners during their confinement. This is no trivial difference given the obligations of prisons to protect prisoners from each other. Nonetheless, as long as such isolation is the form of sentencing advocated, I am willing to grant that incapacitation is a non-issue in this debate Rehabilitation Rehabilitation is the goal of reforming the criminal so that he can be reintegrated into society as a well-behaved productive citizen Several recent studies have shown that execution is almost completely unsuccessful as a method of rehabilitating the offender. However, given permanent residence in isolation within a prison, LIPWPP is not really rehabilitative either. Thus, both alternatives are equal again on this value, at least in the sense of preparing a criminal for re-entry into general society However, if one means by rehabilitation the service done to the criminal himself of helping him have a profitable and meaningful life while incarcerated, things are not so clear. On the one hand, it is possible that a murderer would repent and dedicate himself to self-improvement. On the other hand, it is possible that a murderer would go on hating and descend into a spiral of self-destructive seething. Since quantifying these probabilities exceeds my abilities, I will optimistically estimate that the net chance of self-development benefits obtained during LIPWPP is offset by the equally small advantage in incapacitation certainty obtained through execution. So, rehabilitation and incapacitation taken together become moot issues
1 of 9 Why Would Anyone Support Capital Punishment? (Part I) Andrew Tallman In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8th Amendment’s ban on cruel and unusual punishment. So, with New Jersey and the UN on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old. Granted, New Jersey had not actually executed anyone in 45 years, so this was a bit like Bill Cosby announcing that he will stop using profanity in his sketches. But the official decision is still noteworthy, as is the fact that New Mexico, Montana, and Nebraska all came close to doing the same thing this year. In the face of the seemingly unstoppable modern sensibility, why would anyone continue to support executing murderers? There are five possible objectives of any criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Starting with these values, let us explore the differences between the two alternatives: capital punishment and life in prison without the possibility of parole. Incapacitation Incapacitation is the goal of making it physically impossible for the criminal to commit further crimes against his fellow human beings. Clearly, both capital punishment and life in prison without the possibility of parole fully incapacitate criminals with respect to the general society. The only exception is if the prisoner escapes, but given that there is such a long delay between conviction and execution that death row becomes a de facto prison sentence until then, there is less distinction here than initially appears. But, for the sake of argument, let us say that once the two paths diverge, execution is 100 percent incapacitation and life in prison without the possibility of parole or LIPWPP (pronounced lip-whip) is 99-plus percent incapacitation. As an advocate of the death penalty, I am not interested in quibbling about numbers, so I will grant that incapacitation is the same for both alternatives. Within the prison community, however, things are not so clear. Unless LIPWPP is upgraded to permanent solitary confinement, such prisoners will still be a threat to guards and other prisoners during their confinement. This is no trivial difference given the obligations of prisons to protect prisoners from each other. Nonetheless, as long as such isolation is the form of sentencing advocated, I am willing to grant that incapacitation is a non-issue in this debate. Rehabilitation Rehabilitation is the goal of reforming the criminal so that he can be reintegrated into society as a well-behaved, productive citizen. Several recent studies have shown that execution is almost completely unsuccessful as a method of rehabilitating the offender. However, given permanent residence in isolation within a prison, LIPWPP is not really rehabilitative either. Thus, both alternatives are equal again on this value, at least in the sense of preparing a criminal for re-entry into general society. However, if one means by rehabilitation the service done to the criminal himself of helping him have a profitable and meaningful life while incarcerated, things are not so clear. On the one hand, it is possible that a murderer would repent and dedicate himself to self-improvement. On the other hand, it is possible that a murderer would go on hating and descend into a spiral of self-destructive seething. Since quantifying these probabilities exceeds my abilities, I will optimistically estimate that the net chance of self-development benefits obtained during LIPWPP is offset by the equally small advantage in incapacitation certainty obtained through execution. So, rehabilitation and incapacitation taken together become moot issues
Retribution Retribution is the goal of restoring the scales of moral justice to balance as possible For instance, when someone thieves, the objective is to restore the victim to his condition prior to the loss. This requires restitution equal to the theft plus a penalty to cover the lost use of that money and the intangible damage to his confidence and security. Civil law is the easiest illustration for understanding retribution. We quantify all sorts of things in civil courts for the sake of saying what the offender owes, and the idea is to restore balance by taking from the criminal and repaying the victim But there are al ways two victims of every crime the particular person and the moral fabric of the society itself. For every infraction against this fabric, we assess varying degrees of penance including jail time, community service, and fines. These all have their own merits, but the retributive purpose is to make the criminal pay enough to restore balance to the moral e just as he must to the victim. Not only is this about compensating those who have lost, but it is about forcing the offender to pay his debt to society so that he may satisfy the demands of just retribution Once paid, we are no longer owed, and he no longer owes What, then, is the proper retribution for murder? As death penalty opponents are so fond of saying, "Executing the murderer will not bring his victim back to life. That, of course, is true. It is just as true, however, that giving him do to truly restore the social fabric to the status quo ante for the obvious reason that there is no way to replace an LIPWTPP will also fail to accomplish a resurrection. And that is the point. There is simply nothing the murderer missing people. Nonetheless, as history and the bible so clearly have held, blood alone can atone for shed blood, By requiring his life of him, we make him pay the only correct price and force him to pay it fully. This balances both the moral fabric as well as the murderers personal register Once we comprehend this distinction between murder and all other crimes(which can be restituted for ) it should be clear that retribution not only justifies execution, it requires it. Execution is the only correct penalty-in-kind for murder, and retribution is the only value so far analyzed which justifies taking this most precious of payments from someone Part l Several developments over the last three months seem to indicate that our society is at a moment of decision regarding capital punishment. It behooves us, therefore, to think seriously about this issue and clarify the very muddy waters people have made of it. As I explained, there are five basic purposes to a criminal justice system incapacitation, rehabilitation, retribution, deterrence, and symbolism. Between the two alternative murder penalties of execution and life in prison without the possibility of parole(LiPWPP), we saw that incapacitation and rehabilitation are essentially moot issues. Retribution, however, strongly favors capital punishment. Let us continue our analysis Deterrence disincentive to pr oal of giving people who might otherwise be willing to commit a crime a strong enough event them from making this choice This is the most complex part of the discussion and the part most misunderstood by nearly every commentator on both sides Given the frequency with which they contradict each other, studies have proven useless in answering definitively whether capital punishment deters. Therefore, it is left to reason to decide, and reason rather counter-intuitively indicates that capital punishment does not deter. Despite wholeheartedly supporting capital punishment myself, I think that emphasizing deterrence is the signature error most of my intellectual allies make when discussing the
2 of 9 Retribution Retribution is the goal of restoring the scales of moral justice to balance as possible. For instance, when someone thieves, the objective is to restore the victim to his condition prior to the loss. This requires restitution equal to the theft plus a penalty to cover the lost use of that money and the intangible damage to his confidence and security. Civil law is the easiest illustration for understanding retribution. We quantify all sorts of things in civil courts for the sake of saying what the offender owes, and the idea is to restore balance by taking from the criminal and repaying the victim. But there are always two victims of every crime: the particular person and the moral fabric of the society itself. For every infraction against this fabric, we assess varying degrees of penance including jail time, community service, and fines. These all have their own merits, but the retributive purpose is to make the criminal pay enough to restore balance to the moral universe just as he must to the victim. Not only is this about compensating those who have lost, but it is about forcing the offender to pay his debt to society so that he may satisfy the demands of just retribution. Once paid, we are no longer owed, and he no longer owes. What, then, is the proper retribution for murder? As death penalty opponents are so fond of saying, “Executing the murderer will not bring his victim back to life.” That, of course, is true. It is just as true, however, that giving him LIPWTPP will also fail to accomplish a resurrection. And that is the point. There is simply nothing the murderer can do to truly restore the social fabric to the status quo ante for the obvious reason that there is no way to replace missing people. Nonetheless, as history and the Bible so clearly have held, blood alone can atone for shed blood. By requiring his life of him, we make him pay the only correct price and force him to pay it fully. This balances both the moral fabric as well as the murderer’s personal register. Once we comprehend this distinction between murder and all other crimes (which can be restituted for), it should be clear that retribution not only justifies execution, it requires it. Execution is the only correct penalty-in-kind for murder, and retribution is the only value so far analyzed which justifies taking this most precious of payments from someone. Part II Several developments over the last three months seem to indicate that our society is at a moment of decision regarding capital punishment. It behooves us, therefore, to think seriously about this issue and clarify the very muddy waters people have made of it. As I explained, there are five basic purposes to a criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Between the two alternative murder penalties of execution and life in prison without the possibility of parole (LIPWPP), we saw that incapacitation and rehabilitation are essentially moot issues. Retribution, however, strongly favors capital punishment. Let us continue our analysis. Deterrence Deterrence is the goal of giving people who might otherwise be willing to commit a crime a strong enough disincentive to prevent them from making this choice. This is the most complex part of the discussion and the part most misunderstood by nearly every commentator on both sides. Given the frequency with which they contradict each other, studies have proven useless in answering definitively whether capital punishment deters. Therefore, it is left to reason to decide, and reason rather counter-intuitively indicates that capital punishment does not deter. Despite wholeheartedly supporting capital punishment myself, I think that emphasizing deterrence is the signature error most of my intellectual allies make when discussing the issue
Capital punishment does not deter because the capital offender is not the right sort of person There are three kinds of people in any society: the good, the barbaric, and the rational. Good people are self governing enough that they either do not want to commit crimes or else restrain themselves morally from committing them. Clearly, capital punishment does not deter such people because decency or morality gets there first Barbaric people are so much like animals that they are incapable of stopping themselves from doing the wicked things they want to do. Such people cannot be deterred because they lack the combination of prudence and self- control which deterrence presupposes. Instead, they must be stopped with the use of force. Rational people are those who want to do illegal things but are self-interested enough that they can perform calculations about risk and reward and decide to avoid committing a crime when its legal penalty outweighs its potential benefits. Thus, deterrence is only an issue with respect to rational people The problem is that murderers are not rational in this way or one thing, they are more likely to be barbaric than to be rational. Furthermore, at the time of a murder,even people who might otherwise be rational or good usually have become momentarily barbaric. This means that they are not performing the sort of calculus or exercising the sort of self-control necessary for deterrence to stop them But even if they were, I am hard pressed to take seriously the claim that capital punishment would deter them whereas LIPWPP would not. If they are indeed rational at the moment, surely LiPWPP represents a massive enough disincentive to deter someone from murder. It is hard to imagine a potential murderer saying to himself, " I am willing to kill this person because the worst it could cost me is LIPWPP If only my state had the death penalty, I surely wouldn t do this thing Even if you can imagine such an internal dialogue in the mind of a potential murderer, the marginal deterrent difference between execution and LiPWPP would be further weakened by several factors. Murderers always assume they will not be caught In the event they imagine being captured, they think that they will be able to escape punishment by some legal technicality or a skillful defense. If convicted, they anticipate acquittal or reduction upon appeal. Even so, they know they will likely be alive for several decades while this process unfolds And in the end, there is always the hope of clemency or escape. All of these considerations significantly mitigate whatever deterrent power execution has, but there is a much more significant problem Criminals do not know the law that well Other than in New Jersey and Texas, I doubt the average criminal actually knows what the current state of the law regarding capital crimes is. And if he does, he surely might imagine that it could change between now and his own unlikely trial or be nullified by some layer of the judiciary including the Supreme Court. All of these factors create such an ambiguity in the mind of even that rare highly-informed criminal who retains enough rationality just prior to the commission of the crime for it to matter that the difference in deterrent effect between execution and lipwpp is effectively diluted to zero But here is a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying,"Well, I guess Iwill drive her over next door before I kill her so that, just in case I am caught, prosecuted, and lose my appeals over 25 years, at least I will get to live out the remaining 15 years of my life rather than die by lethal injection"? Such fantasy is beyond even my nimble imagination Dennis Prager once said in a column on this topic that a state which made murders committed on certain days of the week punishable by death but by LiPWPP on the others would surely find a shift from the former to the latter for homicides. Though his hypothetical may be correct for a small subset of criminals, I would instead say that waiting a day to kill is very different from transporting a victim across state lines or selecting residents of another state for victims based on such calculations. Weird hypotheticals produce unreliable conclusions. I know Dennis, and I think his error stems from thinking criminals are even remotely as rational as he. They are not
3 of 9 Capital punishment does not deter because the capital offender is not the right sort of person. There are three kinds of people in any society: the good, the barbaric, and the rational. Good people are selfgoverning enough that they either do not want to commit crimes or else restrain themselves morally from committing them. Clearly, capital punishment does not deter such people because decency or morality gets there first. Barbaric people are so much like animals that they are incapable of stopping themselves from doing the wicked things they want to do. Such people cannot be deterred because they lack the combination of prudence and selfcontrol which deterrence presupposes. Instead, they must be stopped with the use of force. Rational people are those who want to do illegal things but are self-interested enough that they can perform calculations about risk and reward and decide to avoid committing a crime when its legal penalty outweighs its potential benefits. Thus, deterrence is only an issue with respect to rational people. The problem is that murderers are not rational in this way. For one thing, they are more likely to be barbaric than to be rational. Furthermore, at the time of a murder, even people who might otherwise be rational or good usually have become momentarily barbaric. This means that they are not performing the sort of calculus or exercising the sort of self-control necessary for deterrence to stop them. But even if they were, I am hard pressed to take seriously the claim that capital punishment would deter them whereas LIPWPP would not. If they are indeed rational at the moment, surely LIPWPP represents a massive enough disincentive to deter someone from murder. It is hard to imagine a potential murderer saying to himself, “I am willing to kill this person because the worst it could cost me is LIPWPP. If only my state had the death penalty, I surely wouldn’t do this thing.” Even if you can imagine such an internal dialogue in the mind of a potential murderer, the marginal deterrent difference between execution and LIPWPP would be further weakened by several factors. Murderers always assume they will not be caught. In the event they imagine being captured, they think that they will be able to escape punishment by some legal technicality or a skillful defense. If convicted, they anticipate acquittal or reduction upon appeal. Even so, they know they will likely be alive for several decades while this process unfolds. And in the end, there is always the hope of clemency or escape. All of these considerations significantly mitigate whatever deterrent power execution has, but there is a much more significant problem. Criminals do not know the law that well. Other than in New Jersey and Texas, I doubt the average criminal actually knows what the current state of the law regarding capital crimes is. And if he does, he surely might imagine that it could change between now and his own unlikely trial or be nullified by some layer of the judiciary including the Supreme Court. All of these factors create such an ambiguity in the mind of even that rare highly-informed criminal who retains enough rationality just prior to the commission of the crime for it to matter, that the difference in deterrent effect between execution and LIPWPP is effectively diluted to zero. But here is a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying, “Well, I guess Iwill drive her over next door before I kill her so that, just in case I am caught, prosecuted, and lose my appeals over 25 years, at least I will get to live out the remaining 15 years of my life rather than die by lethal injection”? Such fantasy is beyond even my nimble imagination. Dennis Prager once said in a column on this topic that a state which made murders committed on certain days of the week punishable by death but by LIPWPP on the others would surely find a shift from the former to the latter for homicides. Though his hypothetical may be correct for a small subset of criminals, I would instead say that waiting a day to kill is very different from transporting a victim across state lines or selecting residents of another state for victims based on such calculations. Weird hypotheticals produce unreliable conclusions. I know Dennis, and I think his error stems from thinking criminals are even remotely as rational as he. They are not
Understanding all of this, it should now be clear that capital punishment does not deter. But what if it did? You may disagree with every point in my prior analysis, and I am sure many of you will relish doing so. But for the sake of argument, allow me to grant that threatening people with execution for murder might act that justify using it? I say not Part Ill As I have explained aboce, there are five core objectives of a criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. In the first column, I showed that incapacitation and rehabilitation are irrelevant as distinctions between execution and life in prison without the possibility of parole (LiPWPPand that retribution strongly favors execution. In the previous column, I explained why I think capital punishment does not deter, though I strongly support the practice for other reasons. But even if I thought that executing murderers would deter others from this crime, that still would not justify doing so for that reason. Why not? It is actually quite simple People must be punished for their own crimes and not used as utilitarian instruments for the sake of scaring other people Consider a rather extreme example. Graffiti is a scourge on many cities. It costs money, it costs time, and it is a serious social pollutant because of all the intangible messages its presence communicates. But I have a solution. I say we cut the arms off all taggers. If that does not work, we will start cutting off their legs as well. If that does not work, we can systematically progress through a list of cherished body parts until we find the correct deterrent Perhaps we will try advancing the mandatory body mutilation schedule every three months until we find no new affiti appearing on our city surfaces. Though clearly effective at deterring, would this approach be wrong? The obvious problem is that, as much as we hate graffiti, the punishment is disproportionate to the crime. Punishing a person more than his crime merits is itself an act of injustice, all the more so when done with the solemnity and deliberation of the state. Just as the lex talionis(eye for an eye)principle in the Bible was meant as a limit on retribution not an escalation, our system of ethics likewise obligates us to never punish a person more than he But would not removing limbs be an excellent deterrent? Indeed, but people are not objects which may be used as we please to obtain a desirable persuasive impression others. They must be treated with respect as persons in their own right. The problem with punitive amputation is not that it would not deter. The problem is that, in over-punishing the violator, we would be reducing him from a human being to an instrument. This is the essential defect of every form of totalitarianism. They turn people into numbers or cogs or machines or whatever metaphor best clarifies the problem rather than respecting them as human beings Even benevolent motives cannot justify such abandonment of our core principle that humans have inalienable rights The proper first question is not whether capital punishment deters; it is whether capital punishment is just. If murder justifies execution on retributive grounds, then we should do it for that reason. If murder does not justify execution this way, then going beyond what is justified for the proposed benefit of deterrence becomes its own crime Punishing a $200 theft with full restitution plus $600 for social fabric damage is fair. That this might deter is nice That punishing it instead with $200 and three fingers would deter better does not alter the fact that hand mutilation ould be an evil punishment There is one wrinkle in all of this, and it has to do with deterring the particular convict himself from future It is somet right to him not to This is the source of civil laws punitive damage awards. But at least for this discussion such considerations are obviously irrelevant. The executed murderer is very unlikely to need deterring from future murders
4 of 9 Understanding all of this, it should now be clear that capital punishment does not deter. But what if it did? You may disagree with every point in my prior analysis, and I am sure many of you will relish doing so. But for the sake of argument, allow me to grant that threatening people with execution for murder might actually deter. Would that justify using it? I say not. Part III As I have explained aboce, there are five core objectives of a criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. In the first column, I showed that incapacitation and rehabilitation are irrelevant as distinctions between execution and life in prison without the possibility of parole (LIPWPP) and that retribution strongly favors execution. In the previous column, I explained why I think capital punishment does not deter, though I strongly support the practice for other reasons. But even if I thought that executing murderers would deter others from this crime, that still would not justify doing so for that reason. Why not? It is actually quite simple. People must be punished for their own crimes and not used as utilitarian instruments for the sake of scaring other people. Consider a rather extreme example. Graffiti is a scourge on many cities. It costs money, it costs time, and it is a serious social pollutant because of all the intangible messages its presence communicates. But I have a solution. I say we cut the arms off all taggers. If that does not work, we will start cutting off their legs as well. If that does not work, we can systematically progress through a list of cherished body parts until we find the correct deterrent. Perhaps we will try advancing the mandatory body mutilation schedule every three months until we find no new graffiti appearing on our city surfaces. Though clearly effective at deterring, would this approach be wrong? The obvious problem is that, as much as we hate graffiti, the punishment is disproportionate to the crime. Punishing a person more than his crime merits is itself an act of injustice, all the more so when done with the solemnity and deliberation of the state. Just as the lex talionis (eye for an eye) principle in the Bible was meant as a limit on retribution not an escalation, our system of ethics likewise obligates us to never punish a person more than he deserves. “But would not removing limbs be an excellent deterrent?” Indeed, but people are not objects which may be used as we please to obtain a desirable persuasive impression on others. They must be treated with respect as persons in their own right. The problem with punitive amputation is not that it would not deter. The problem is that, in over-punishing the violator, we would be reducing him from a human being to an instrument. This is the essential defect of every form of totalitarianism. They turn people into numbers or cogs or machines or whatever metaphor best clarifies the problem rather than respecting them as human beings. Even benevolent motives cannot justify such abandonment of our core principle that humans have inalienable rights. The proper first question is not whether capital punishment deters; it is whether capital punishment is just. If murder justifies execution on retributive grounds, then we should do it for that reason. If murder does not justify execution this way, then going beyond what is justified for the proposed benefit of deterrence becomes its own crime. Punishing a $200 theft with full restitution plus $600 for social fabric damage is fair. That this might deter is nice. That punishing it instead with $200 and three fingers would deter better does not alter the fact that hand mutilation would be an evil punishment. There is one wrinkle in all of this, and it has to do with deterring the particular convict himself from future wrongdoing. It is sometimes right to over-punish a perpetrator for the sake of convincing him not to be a recidivist. This is the source of civil law’s punitive damage awards. But at least for this discussion such considerations are obviously irrelevant. The executed murderer is very unlikely to need deterring from future murders
at best a side issue. If the alternatives are both retributively just, then deterrence can certainly break ties. But itne Thus, when considering two or more punishments which differ primarily in degree of severity, deterrence is alw difference is so clearly about severity, as is the case with execution versus LIPWPP, deterrence cannot be a consideration When the just punishment deters, that is nice. But if not, that is too bad. Even if an unjust punishment would dete better, a moral society may not objectify even its criminals in such a way. This is why I say that emphasizing deterrence is the most significant blunder most advocates of capital punishment make in this discussion Symbolism Symbolism in a criminal justice system is the goal of tangibly embodying the values and ideals of a society The law is one of the most powerful teachers any culture has. It has a stigmatizing effect on behavior, and it is the most meaningful indicator a society has of its core principles. Thus, whether we do or do not execute murderers says something about how highly we value life that the mere assertions in the Declaration of Independence and the 5th Amendment never really can. It is our societys pledge of allegiance to the sanctity of life that we will take it from anyone who deliberately takes it from others. In this regard, there is simply no comparison between capital punishment and LIPWPP When we execute murderers, we are saying something loud and clear about this most fundamental of rights. If we neglect to do so, we are saying something equally potent. Because all other rights derive from and devolve to the right to life, I am frankly proud to live in a country which still, for the most part, takes a stand on this one point of order. That being said, I freely acknowledge that if the arguments regarding retribution did not justify execution, ne mount of symbolic benefit would suffice to do so. Symbolism would become just another way of objectifying people, just as deterrence through over-punishment is Summary Thus, when considering the five purposes of a criminal justice system, incapacitation and rehabilitation wash out, retribution clearly endorses capital punishment, and deterrence and symbolism become purely secondary concerns to retribution. On this analysis alone, I can strongly support capital punishment as an abstract proposition. But are there not practical concerns? What about innocent convicts Part Iv To this point we have seen that retribution(rather than rehabilitation, incapacitation, deterrence, or symbolism)is both the only valid reason for executing murderers and also an adequate reason for doing so. But, of course, the other side has not yet responded. Their objections fall roughly into three categories: practical, conceptual, or IgIous Practical Objection 1: It is unacceptable to execute innocent people Although any legal system assumes some danger of wrongful convictions, the obvious differences between capital unishment and our other forms of punishment are irreversibility and completeness. Even though all penalties(other than fines)take away things that cannot be returned(time, reputation, relationships, freedom), at least the loss from other punishments is only partial. Execution is total and permanent As death-row acquittals have shown, even the plodding deliberation of our legal process with all of its safeguards and evidentiary standards is not enough to guarantee that no innocent people get executed. This is troubling, indeed and it is useful to see why the two most common responses fail
5 of 9 Thus, when considering two or more punishments which differ primarily in degree of severity, deterrence is always at best a side issue. If the alternatives are both retributively just, then deterrence can certainly break ties. But if the difference is so clearly about severity, as is the case with execution versus LIPWPP, deterrence cannot be a consideration. When the just punishment deters, that is nice. But if not, that is too bad. Even if an unjust punishment would deter better, a moral society may not objectify even its criminals in such a way. This is why I say that emphasizing deterrence is the most significant blunder most advocates of capital punishment make in this discussion. Symbolism Symbolism in a criminal justice system is the goal of tangibly embodying the values and ideals of a society. The law is one of the most powerful teachers any culture has. It has a stigmatizing effect on behavior, and it is the most meaningful indicator a society has of its core principles. Thus, whether we do or do not execute murderers says something about how highly we value life that the mere assertions in the Declaration of Independence and the 5th Amendment never really can. It is our society’s pledge of allegiance to the sanctity of life that we will take it from anyone who deliberately takes it from others. In this regard, there is simply no comparison between capital punishment and LIPWPP. When we execute murderers, we are saying something loud and clear about this most fundamental of rights. If we neglect to do so, we are saying something equally potent. Because all other rights derive from and devolve to the right to life, I am frankly proud to live in a country which still, for the most part, takes a stand on this one point of order. That being said, I freely acknowledge that if the arguments regarding retribution did not justify execution, no amount of symbolic benefit would suffice to do so. Symbolism would become just another way of objectifying people, just as deterrence through over-punishment is. Summary Thus, when considering the five purposes of a criminal justice system, incapacitation and rehabilitation wash out, retribution clearly endorses capital punishment, and deterrence and symbolism become purely secondary concerns to retribution. On this analysis alone, I can strongly support capital punishment as an abstract proposition. But are there not practical concerns? What about innocent convicts? Part IV To this point we have seen that retribution (rather than rehabilitation, incapacitation, deterrence, or symbolism) is both the only valid reason for executing murderers and also an adequate reason for doing so. But, of course, the other side has not yet responded. Their objections fall roughly into three categories: practical, conceptual, or religious. Practical Objection 1: It is unacceptable to execute innocent people. I agree. Although any legal system assumes some danger of wrongful convictions, the obvious differences between capital punishment and our other forms of punishment are irreversibility and completeness. Even though all penalties (other than fines) take away things that cannot be returned (time, reputation, relationships, freedom), at least the loss from other punishments is only partial. Execution is total and permanent. As death-row acquittals have shown, even the plodding deliberation of our legal process with all of its safeguards and evidentiary standards is not enough to guarantee that no innocent people get executed. This is troubling, indeed, and it is useful to see why the two most common responses fail
One attempt begins by noting that we bias our system overwhelmingly in favor of the accused. He need not incriminate himself. He is entitled to representation. If convicted, he may avail himself of a ludicrously thorough system of appeals. And the main bias in favor of the accused is his presumption of innocence. Though such safeguards are set even higher for execution, the chance of error is nonetheless real Merely reducing the chance of injustice on this issue is not enough The other attempt describes us as being in a"war against crime, and asserts that all wars entail"collateral damage to undeserving victims. The problem with this analogy is that the differences between the pressures of fluid battlefield situations and the capital process are so vast that the analogy becomes useless The justification for killing the enemy when doing so entails either the chance or the certainty that noncombatants will be killed comes from the principle of"double effect. We would avoid harming the innocent if we could, but if practical factors prevent it, we accept the tragedy so long as it is still less than the good accomplished by killing the known bad guys. People often use the medical analogy of cutting off a leg to save the body or killing a few healthy cells along with the cancerous ones. The problem with this is it does not apply to the single individual isolated within a jail posing no imminent threat to anyone. Also, since the only thing justifying killing the innocent would be the certainty of also killing the dangerous, not knowing for sure which one stands before us renders the principle of double effect unhelpful. Also, the protection of other citizens cannot be used because the alternative is LIPWPP,not release, for a given convict So if these replies do not work, how can I respond, especially since I do not accept the oft-used deterrence argument Well, it is because I believe we can eliminate such mistakes by having two different standards of certainty. Though guilt beyond a reasonable doubt is already a hefty presumption favoring the accused, it is clearly not enough to avoid all errors Nor am I interested in raising it for conviction because that would mean acquitting more offenders But why not a higher standard for sentencing? doubt at all. If we executed only those people who are guilty beyond any doubt, this objection evaporates. Thus o There are two different kinds of capital cases: those with some doubt, but not a reasonable doubt, and those with beyond any doubt. Regardless of aggravating circumstances, only those in the third category would be eligible for the death penalty. Legislators will doubtless need to more precisely define this new standard, but in principle I am confident a court can recognize cases that are beyond mistakenness. As an example, consider the case of Timothy Mc Veigh. People rightly worry that some capital convicts are innocent, but no one worries that he was one of them I have one final thought on this issue. The Bible makes two instructive points about capital cases: there must be two eyewitnesses, and the penalty for perjury is death. Just as it is right to execute murderers, it is right to execute those who conspire to murder through the legal system, assuming again that the same sorts of standards are satisfied Practical Objection 2: Capital punishment disproportionately targets the poor and minorities. Properly understood, this is really just a variation of the previous objection. The reason for wrongfully executing inority defendants does not really matter. Nonetheless, the argument is gripping to some, so I will Clearly, minorities and the poor are over-represented on death row compared to their percentage in the general population. There are two possible reasons. Either such people are more likely to be convicted or they are more likely to be criminals. The fact that they are disproportionately present on death row fails to tell us which. However it is worth noting that another group is disproportionately represented on death row, and no one seems to think it ndicates bias in the system: men. Constituting just 49.2 percent of the population, men are 98. 4 percent of death row convicts. This is because men commit the vast majority of murders, not because the system is hopelessly female chauvinistic. Such a fact does not prove that all poor and minority persons on death row are guilty, but it does deflate the claim that their disproportionate representation proves systemic bias
6 of 9 One attempt begins by noting that we bias our system overwhelmingly in favor of the accused. He need not incriminate himself. He is entitled to representation. If convicted, he may avail himself of a ludicrously thorough system of appeals. And the main bias in favor of the accused is his presumption of innocence. Though such safeguards are set even higher for execution, the chance of error is nonetheless real. Merely reducing the chance of injustice on this issue is not enough. The other attempt describes us as being in a “war against crime,” and asserts that all wars entail “collateral damage” to undeserving victims. The problem with this analogy is that the differences between the pressures of fluid battlefield situations and the capital process are so vast that the analogy becomes useless. The justification for killing the enemy when doing so entails either the chance or the certainty that noncombatants will be killed comes from the principle of “double effect.” We would avoid harming the innocent if we could, but if practical factors prevent it, we accept the tragedy so long as it is still less than the good accomplished by killing the known bad guys. People often use the medical analogy of cutting off a leg to save the body or killing a few healthy cells along with the cancerous ones. The problem with this is it does not apply to the single individual isolated within a jail posing no imminent threat to anyone. Also, since the only thing justifying killing the innocent would be the certainty of also killing the dangerous, not knowing for sure which one stands before us renders the principle of double effect unhelpful. Also, the protection of other citizens cannot be used because the alternative is LIPWPP, not release, for a given convict. So if these replies do not work, how can I respond, especially since I do not accept the oft-used deterrence argument? Well, it is because I believe we can eliminate such mistakes by having two different standards of certainty. Though guilt beyond a reasonable doubt is already a hefty presumption favoring the accused, it is clearly not enough to avoid all errors. Nor am I interested in raising it for conviction because that would mean acquitting more offenders. But why not a higher standard for sentencing? There are two different kinds of capital cases: those with some doubt, but not a reasonable doubt, and those with no doubt at all. If we executed only those people who are guilty beyond any doubt, this objection evaporates. Thus, juries in capital cases would return one of three verdicts: not guilty, guilty beyond a reasonable doubt, and guilty beyond any doubt. Regardless of aggravating circumstances, only those in the third category would be eligible for the death penalty. Legislators will doubtless need to more precisely define this new standard, but in principle I am confident a court can recognize cases that are beyond mistakenness. As an example, consider the case of Timothy McVeigh. People rightly worry that some capital convicts are innocent, but no one worries that he was one of them. I have one final thought on this issue. The Bible makes two instructive points about capital cases: there must be two eyewitnesses, and the penalty for perjury is death. Just as it is right to execute murderers, it is right to execute those who conspire to murder through the legal system, assuming again that the same sorts of standards are satisfied. Practical Objection 2: Capital punishment disproportionately targets the poor and minorities. Properly understood, this is really just a variation of the previous objection. The reason for wrongfully executing innocent poor or minority defendants does not really matter. Nonetheless, the argument is gripping to some, so I will respond to it. Clearly, minorities and the poor are over-represented on death row compared to their percentage in the general population. There are two possible reasons. Either such people are more likely to be convicted or they are more likely to be criminals. The fact that they are disproportionately present on death row fails to tell us which. However, it is worth noting that another group is disproportionately represented on death row, and no one seems to think it indicates bias in the system: men. Constituting just 49.2 percent of the population, men are 98.4 percent of death row convicts. This is because men commit the vast majority of murders, not because the system is hopelessly female chauvinistic. Such a fact does not prove that all poor and minority persons on death row are guilty, but it does deflate the claim that their disproportionate representation proves systemic bias
Another variation is the complaint that the wealthy(having access to superb counsel)or the white(having the benefit of friendly racism) regularly go free despite being guilty. Unfortunately, the fact that a thousand guilty persons are acquitted for irrational factors does nothing to dilute the justice of punishing a single person who actually committed the crime. That wealthy whites avoid just punishment does not give minorities and the poor any reason to complain if they are punished for their actual crimes. I, too, am revolted that anyone who murders would go free for any reason, but the only thing worse than accepting this unsavory fact would be to exacerbate it by under-punishing others in the interests of setting our errors as our standard for consistency rt 5 Previously, we saw that the practical objection about executing innocent convicts can be solved by heightening the capital standard to guilt beyond any doubt. Now, let us look at some of the conceptual objections Conceptual Objection 1: You cannot teach people that killing is wrong by killing What punishment could we assess against criminals that would not be wrong when done to innocent people Is it inconsistent to punish embezzlers with fines? Is it inconsistent to put kidnappers in the liberty-deprived condition of prison? Would we be inconsistent, or merely brutal, to adopt a more Indonesian response to assault by publicly flagellating offenders? Precisely because every form of punishment is a form of harm to the convicted, the problem with this objection is that it proves too much, indicting all expressions of any justice system. That is why the proper response to it is to ask why the person advocates anarchism, since only the anarchist view(that all outside impositions upon a person are wrong) is consistent with the principle of this argument. But that is probably a bit much for your naive friend in a casual discussion. Instead, ask him if he also opposes execution because of the risk that the convict is innocent. If so, then he is simultaneously arguing that all killing is wrong and that the killing of innocents is uniquely wrong. Every person who opposes capital punishment because of the risk to innocents affirms, in making that argument, that there is something vastly different between killing those who have done nothing to deserve it and killing those who have. And clearly, this is the distinction that solves this Simply put, to allege that killing murderers and killing innocent citizens are the same is to deny the distinction between guilt and innocence which is the presuppositional foundation of all law in the first place. If we cannot distinguish between how we should treat lawbreakers and non-lawbreakers, we have much more elementary problems than rationally discussing the validity of capital punishment. Conceptual Objection 2: It erodes the sanctity of human life There are two ways for our justice system to show that something is sacred: by protecting it from violation and by punishing those who violate it. Clearly, in this case, the two are interconnected. Life is uniquely precious, which is exactly why taking the life of one who deliberately takes innocent life is the only way to affirm lifes sacredness Rather than proclaiming the preciousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment When something is sacred. that does not mean that it cannot be violated. rather. it means that it must be violated only in the rarest of cases and only in the most deliberate of ways. The almost absurd solemnity with which we execute people in this country is not a defect of our system, but a testament to the importance we attach to human life. Instead of eroding the sanctity of life, execution practiced with such regard actually affirms it
7 of 9 Another variation is the complaint that the wealthy (having access to superb counsel) or the white (having the benefit of friendly racism) regularly go free despite being guilty. Unfortunately, the fact that a thousand guilty persons are acquitted for irrational factors does nothing to dilute the justice of punishing a single person who actually committed the crime. That wealthy whites avoid just punishment does not give minorities and the poor any reason to complain if they are punished for their actual crimes. I, too, am revolted that anyone who murders would go free for any reason, but the only thing worse than accepting this unsavory fact would be to exacerbate it by under-punishing others in the interests of setting our errors as our standard for consistency. Part 5 Previously, we saw that the practical objection about executing innocent convicts can be solved by heightening the capital standard to guilt beyond any doubt. Now, let us look at some of the conceptual objections. Conceptual Objection 1: You cannot teach people that killing is wrong by killing. What punishment could we assess against criminals that would not be wrong when done to innocent people? Is it inconsistent to punish embezzlers with fines? Is it inconsistent to put kidnappers in the liberty-deprived condition of prison? Would we be inconsistent, or merely brutal, to adopt a more Indonesian response to assault by publicly flagellating offenders? Precisely because every form of punishment is a form of harm to the convicted, the problem with this objection is that it proves too much, indicting all expressions of any justice system. That is why the proper response to it is to ask why the person advocates anarchism, since only the anarchist view (that all outside impositions upon a person are wrong) is consistent with the principle of this argument. But that is probably a bit much for your naïve friend in a casual discussion. Instead, ask him if he also opposes execution because of the risk that the convict is innocent. If so, then he is simultaneously arguing that all killing is wrong and that the killing of innocents is uniquely wrong. Every person who opposes capital punishment because of the risk to innocents affirms, in making that argument, that there is something vastly different between killing those who have done nothing to deserve it and killing those who have. And clearly, this is the distinction that solves this objection. Simply put, to allege that killing murderers and killing innocent citizens are the same is to deny the distinction between guilt and innocence which is the presuppositional foundation of all law in the first place. If we cannot distinguish between how we should treat lawbreakers and non-lawbreakers, we have much more elementary problems than rationally discussing the validity of capital punishment. Conceptual Objection 2: It erodes the sanctity of human life. There are two ways for our justice system to show that something is sacred: by protecting it from violation and by punishing those who violate it. Clearly, in this case, the two are interconnected. Life is uniquely precious, which is exactly why taking the life of one who deliberately takes innocent life is the only way to affirm life’s sacredness. Rather than proclaiming the preciousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment. When something is sacred, that does not mean that it cannot be violated. Rather, it means that it must be violated only in the rarest of cases and only in the most deliberate of ways. The almost absurd solemnity with which we execute people in this country is not a defect of our system, but a testament to the importance we attach to human life. Instead of eroding the sanctity of life, execution practiced with such regard actually affirms it
Part 6 Previously, we learned that the distinction between innocence and guilt solves three of the common conceptual arguments against capital punishment. Let us continue with the remainder of these arguments Conceptual Objection: Execution violates the Eighth amendment by being cruel and unusual. The wording of the Eighth Amendment is abundantly clear: only punishments which are both cruel and unusual violate it. Thus, no matter how cruel a punishment is, if it is administered with regularity, it cannot be unconstitutional. Likewise, no matter how unusual a punishment is, if it is administered humanely it is constitutional. Since the standards for execution are uniform(at least within a particular state)and the procedure used (lethal injection, most often) is humane(especially when compared to both past forms of execution and the ways murder ictims suffer ), this objection is a non-starter The most serious arguments seem to derive from(I)the method not being completely painless, or(2)similar cases do not always receive the same penalty. Ironically, the primary reason that cases are not resolved identically is because we try so hard to confirm guilt. The conviction and appeals process produces varying results. Thus the simplest way to create more uniformity would be to execute the guilty immediately after every conviction who are convinced that such a system would do a better job of deterring murder. Doubtless it would, but not ato. on Obviously, this would not improve our system, although it might please certain bloodthirsty advocates of execut acceptable price Finally, whatever claims might be made about the Eighth Amendment, the Fifth Amendment specifically endorses the taking of life under the right circumstances. When it says that no person may be"deprived of life, liberty,or property without due process of law, the Fifth Amendment is obviously granting permission to deprive people of any of these if due process is satisfied. Any interpretation of the Eighth Amendment that is used to oppose capital punishment must fail in light of what the Fifth Amendment so clearly authorizes. And we know that the founders were not conflicted on this point since all thirteen colonies maintained capital crime statutes. I know that some issues of Constitutional interpretation are complex, but this is not one of them Conceptual Objection: Capital punishment is barbaric and hateful According to opponents, there is a vast burgeoning awareness that capital punishment is wrong because it represents the most vicious and malicious elements of a human past we are evolving beyond. Enhancing their point is our current war against a political vision that thinks it is appropriate to punish almost any crime with public beheading Furthermore, the angriest, meanest, most unloving people are rarely the ones who oppose capital punishment. Which kind of people do we want to be? Frankly, the way many people talk about executing murderers demonstrates such fury and lack of love that I cringe to find myself on their side. During my years in talk radio, I have often heard sentiments such as, "Those vermin deserve to suffer";"Hangin'would be too good for them","Lethal injection's for sissies";"Bullets cost money, but at least you can reuse a rope. Such rage is powerful .. and frightening Nevertheless, the fact that many of the wrong people support the right thing for the wrong reason does not require me to abandon supporting it for the right reasons. I would like to talk such people out of their anger, but I would also like to keep them supporting capital punishment for murderers in the process does a civil society much good. So, I am basically satisfied with anything that turns a convicted murderer into a o dead murderer
8 of 9 Part 6 Previously, we learned that the distinction between innocence and guilt solves three of the common conceptual arguments against capital punishment. Let us continue with the remainder of these arguments. Conceptual Objection: Execution violates the Eighth Amendment by being cruel and unusual. The wording of the Eighth Amendment is abundantly clear: only punishments which are both cruel and unusual violate it. Thus, no matter how cruel a punishment is, if it is administered with regularity, it cannot be unconstitutional. Likewise, no matter how unusual a punishment is, if it is administered humanely it is constitutional. Since the standards for execution are uniform (at least within a particular state) and the procedure used (lethal injection, most often) is humane (especially when compared to both past forms of execution and the ways murder victims suffer), this objection is a non-starter. The most serious arguments seem to derive from (1) the method not being completely painless; or (2) similar cases do not always receive the same penalty. Ironically, the primary reason that cases are not resolved identically is because we try so hard to confirm guilt. The conviction and appeals process produces varying results. Thus the simplest way to create more uniformity would be to execute the guilty immediately after every conviction. Obviously, this would not improve our system, although it might please certain bloodthirsty advocates of execution who are convinced that such a system would do a better job of deterring murder. Doubtless it would, but not at an acceptable price. Finally, whatever claims might be made about the Eighth Amendment, the Fifth Amendment specifically endorses the taking of life under the right circumstances. When it says that no person may be “deprived of life, liberty, or property without due process of law,” the Fifth Amendment is obviously granting permission to deprive people of any of these if due process is satisfied. Any interpretation of the Eighth Amendment that is used to oppose capital punishment must fail in light of what the Fifth Amendment so clearly authorizes. And we know that the founders were not conflicted on this point since all thirteen colonies maintained capital crime statutes. I know that some issues of Constitutional interpretation are complex, but this is not one of them. Conceptual Objection: Capital punishment is barbaric and hateful. According to opponents, there is a vast burgeoning awareness that capital punishment is wrong because it represents the most vicious and malicious elements of a human past we are evolving beyond. Enhancing their point is our current war against a political vision that thinks it is appropriate to punish almost any crime with public beheading. Furthermore, the angriest, meanest, most unloving people are rarely the ones who oppose capital punishment. Which kind of people do we want to be? Frankly, the way many people talk about executing murderers demonstrates such fury and lack of love that I cringe to find myself on their side. During my years in talk radio, I have often heard sentiments such as, “Those vermin deserve to suffer”; “Hangin’ would be too good for them”; “Lethal injection’s for sissies”; “Bullets cost money, but at least you can reuse a rope.” Such rage is powerful … and frightening. Nevertheless, the fact that many of the wrong people support the right thing for the wrong reason does not require me to abandon supporting it for the right reasons. I would like to talk such people out of their anger, but I would also like to keep them supporting capital punishment for murderers in the process. As for being barbaric, well, to me the barbarism is not in taking a murderer’s life, but in refusing to do so. As for the method, I am indifferent. My sense of retribution does not require suffering, and I am unclear how gratuitous torture does a civil society much good. So, I am basically satisfied with anything that turns a convicted murderer into a dead murderer
Conceptual Objection: Execution is degrading to the executioner. Even if capital punishment does no damage to the sanctity of life and no indignity to the murderer being killed nonetheless, asking an otherwise decent human being to so ruthlessly take the life of another person damages the soul of the executioner-so the argument goes. Although I understand this concern and accept that many real executioners may feel this way, I think there is a basic misunderstanding here If execution is honoring of life and justice, then it cannot be the case that doing it would be harmful to the executioner. A just action cannot pollute the soul of the doer. Only unjust acts can do this. So, once the propriety of capital punishment is established, the issue of its impact on the executioner should be settled. An execution is properly understood as the only way to honor the capacity of the murderer to pay for what he has done. Likewise, allowing another human being to make this honoring possible is itself an honor, not a pollutant Conceptual Objection: The victims family often does not want execution. I have often seen interviews with family members of the victim who encourage leniency in sentencing the murderer On the other hand, I have also seen interviews where the family wants something atrocious done to the defendant verging on torture. In both cases my response is the same. We neither execute people in order to satisfy the wrath of the victims family, nor do we refrain from doing so if such wrath is not present Our justice system is not based on the idea that we do whatever the particular victim or his family wants done, but on the idea that we do what is decided upon as right by the calm, rational deliberations of the entire society. We seek justice, not the satisfying of particular, emotionally-connected impulses. Thus, individuals do not get to decide the punishment. In fact, ignorin what such people want is an important element of keeping this practice from being the unpredictable barbarity it might otherwise b
9 of 9 Conceptual Objection: Execution is degrading to the executioner. Even if capital punishment does no damage to the sanctity of life and no indignity to the murderer being killed, nonetheless, asking an otherwise decent human being to so ruthlessly take the life of another person damages the soul of the executioner—so the argument goes. Although I understand this concern and accept that many real executioners may feel this way, I think there is a basic misunderstanding here. If execution is honoring of life and justice, then it cannot be the case that doing it would be harmful to the executioner. A just action cannot pollute the soul of the doer. Only unjust acts can do this. So, once the propriety of capital punishment is established, the issue of its impact on the executioner should be settled. An execution is properly understood as the only way to honor the capacity of the murderer to pay for what he has done. Likewise, allowing another human being to make this honoring possible is itself an honor, not a pollutant. Conceptual Objection: The victim’s family often does not want execution. I have often seen interviews with family members of the victim who encourage leniency in sentencing the murderer. On the other hand, I have also seen interviews where the family wants something atrocious done to the defendant verging on torture. In both cases my response is the same. We neither execute people in order to satisfy the wrath of the victim’s family, nor do we refrain from doing so if such wrath is not present. Our justice system is not based on the idea that we do whatever the particular victim or his family wants done, but on the idea that we do what is decided upon as right by the calm, rational deliberations of the entire society. We seek justice, not the satisfying of particular, emotionally-connected impulses. Thus, individuals do not get to decide the punishment. In fact, ignoring what such people want is an important element of keeping this practice from being the unpredictable barbarity it might otherwise be
