Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I seek to cure what’s deep inside… Countering my own death penalty argument

There’s a banality to public discussions that I’ve never been able to understand, perhaps due to my near pathological inability to empathise with others, or some other hideous character flaw (I have many).  Public conversations are mundane and pedestrian.  Do you support onshore processing, or are you a xenophobic monster?  Do you support the abolition of the death penalty, or are you a barbarian?  Do you want to increase funding to Community Legal Centres, or do you hate the poor?  Do you oppose religious education in schools, or are you against teaching facts in schools?  Do you support the Carbon Tax, or do you deny anthropogenic climate change?  Do you oppose the Carbon Tax, or are you anti-industrial?  Are you in favour of the government supporting private schools, or do you think private school kids should be punished?  Do you support offshore processing, or are you in favour of opening the floodgates of illegal immigrants?

When I see these discussions play out, I’m absolutely unable to understand what’s going on inside the head of the participants.  I just don’t get it.  I complain often of the lack of nuance in public discussions, and the fact that there is no subtlety in opinion or analysis.  It particularly baffles me because I know that, behind closed doors, extremely elegant and intricate discussions are being held by political advisers, public servants, organisations, and academics.

Here’s a fun one: do you know why countries spend millions of dollars each year sending officials and cohorts to big international conferences?  The conferences themselves are usually banal — you could probably run them more effectively over e-mails and Skype.  It’s the conversations that happen ‘in the margins’ that are infinitely more productive — the unofficial, off-the-record, casual chats where people can be a little bit more frank and intelligent because they don’t have to worry about the baldernonsense of the media circus.  This is a big part of my criticism of Wikileaks and co: secrecy exists because the open public is stultifying.

Even when the discussions aren’t secret, people don’t seem to be terribly interested in them.  Thinking particularly of the death penalty conversation, there’s an entire community of academics discussing the issue in beautiful, lucid terms.  The public debate — between the right thinking liberals and the vengeance-seeking yokels — in no way reflects this conversation.  It’s hard to imagine Hannah Arendt (who supported the death penalty for particular crimes) in the same category of thinker as the slack jaws from the US Bible Belt, but this is the way the public discussion forms.  In yesterday’s conversation about asylum seekers, for example, I received a torrent of abuse because I’m pro-death penalty.  I would be shocked if the same people would refer to Arendt in the same terms.

The saddest part is that conversations about the death penalty give rise to a fascinating breadth of issues relating to punishment.  In the spirit of being the trouble that I want to see in the world, here’s the sort of conversation that could have happened —

You’re going to do this in dialogue form, aren’t you?

Yes.  I quite like the format for discussion of philosophical subjects.  It doesn’t fit the contemporary ‘write a philosophical essay’ style, but I still like it for ethical discussions.

But aren’t there problems with the format?

Yeah.  It does mean that you are susceptible to creating strawmen opponents.  But… and here’t the really cool bit… virtue ethics gives us a lot of the tools that we need to do this ‘dialogue’ format really well.  If something is a moral dilemma, two morally excellent people can disagree about the issue.  The bulk of my meta-argument regarding the death penalty is that the issue is still a moral dilemma (which is denied by a scary number of people).  A good dialogue is where you can consider two moral exemplars disagreeing and the arguments they would pose to each other.

I’m sure that’s all very interesting, but let’s get back to the death penalty.  How would you sum up your argument?

The core of my argument is that life imprisonment and the death penalty are actually the same thing: you are punishing a person until they die from it.  Life imprisonment is indefinitely long and abolitionists have turned the act of living itself into a punishment.  The death penalty is more humane: we don’t punish a person indefinitely.

It’s a persuasive argument, I’ll give you that.

You flatterer.

But I’m uncomfortable with the argument.  I can’t quite get my head around why, but I really don’t like the idea of using death as a punishment.

I don’t like the idea of using life as a punishment.  J.S. Mill referred to it as a ‘living tomb’: every time they are cured from illness, their punishment is extended.  The abolitionist’s conception of life imprisonment is a bit fanciful.

Are you conceiving of life imprisonment correctly then?  Isn’t it a sentence of 25 years?

Yeah, but I find that a bit baffling.  Not all people sentenced to life imprisonments serve 25 years — some are locked up for the term of their natural life, getting us back to the start of my argument.  Further, it’s something of an inequitable punishment: I’m in my 20s, so a sentence of 25 years means I still have my adult life as my own.  Does a person in their 70s have the same option?

It’s sort of the same way that parking fines are a bit inequitable.  $70 when I don’t have a job means more than $70 when I’m earning $90k.  The value of the $70 changes, as does the value of 25 years.  I’m sure Gai Waterhouse won’t struggle to find $5,500 to pay her horse racing related sanction…

Fair point.  But something still feels ‘off’ about the argument.  Any help?

Sure.  The key weakness in my argument is that it narrows your options to discussion of only life imprisonment versus the death penalty.  The discussion is narrowed to avoid a very lengthy conversation that we could have now, if you’d like?

Sure.  What other options are there?

You could throw out the whole system, kit and caboodle.  My argument relies on the intuition that crimes should be punished.

That seems like a reasonable intuition.

But is it really?  I think it is because my idea of the morally excellent State is one which maintains order by punishing crime, but it’s not the only conception available to people.  What does the word ‘crime’ there mean?

In the Tao Te Ching chapter 57, Lao Tzu writes that the greater the number of laws, the more criminals you’ll have.  The concept of ‘crime’ in this sense is ontologically grounded in the laws created by the State.  It turns out I can only defend my intuitive position if I also defend a position that the State passes morally good laws, which is surprisingly difficult.  What I’d prefer to do is claim that these morally great laws exist prior to the State legislating them.  The process of legislation turns these anterior laws into something workable by the mechanisms of the State’s legal system.  But then I end up with two concepts of crime: one crime is a crime against the legislated laws of the State, while the other is a crime against the anterior law which existed prior to the State legislating… and it all gets messy.

You could scrap this completely with a much more sophisticated understanding of crime as a function of social problems.  The thief steals because they are poor and hungry.  The addict is addicted because they are self medicating their depression.  A person who is violent and a threat to others is suffering a psychological problem rather than a legal one.

Under this view, the role of the State is not to punish crime but to rectify social problems.  Why punish the thief when the problem is the economic inequality which created the thief?  Why punish the drug addict when the problem is the abject misery of their life?

I like this view.  I prefer to think of the penal system in ‘social justice’ terms like rehabilitation.

Indeed, and you don’t even need to be an absolutist about it.  There’s a spectrum of positions between this concept of justice and my hard line view.  Some people aren’t thieves because of social problems of inequity.  Some people are thieves because they are greedy monsters.  By quirk of our legal system, people who are thieves due to reason of greed tend to be able to afford lawyers and are thus likely to be punished less…



This view also changes how I think about particular crimes.  A person who is violent and is a threat to society doesn’t need to be punished in prison — they have a psychiatric issue.  How can we justify punishing a person for their illness?

Careful there, tiger.  This line of inquiry pushes us close to three areas we don’t want to be.  The first is the most problematic: the idea of people being helpless in the face of themselves.  People aren’t just a function of their diagnoses.  I might be genetically predisposed towards tax evasion, for example, but this would not be a reason for me to be a tax evader.  As our folk-understanding of psychiatry increases, we seem to abandon responsibility for increasing amounts of things to biology.  A person who is, by nature, inclined towards violence and towards being a threat to others has a responsibility to deal with that aspect of themselves.  When we punish them — under my version of the ideal state — we are not just punishing them for being violent and a threat, but for failing in their responsibility to conduct themselves appropriately.

The second problem is distinguishing which ‘crimes’ are mere psychiatric illness.  In the above paragraph, I used tax evasion which is clearly stupid… unless tax evasion is somehow the symptom of some other biological malady.  Perhaps I have a compulsive need to feel smart and I was compelled to evade taxes as a result of this compulsion: ‘I had to battle wits with the system, your honour!’  Paedophiles sometimes claim that they have a psychiatric compulsion to be attracted towards children.  Some shoplifters make similar claims of compulsion.  Is the drink driver suffering from alcoholism?  Even the act of committing a crime (in my earlier sense) can be folk-diagnosed as ‘oppositional defiant disorder’.

The third problem is recognising the dignity of the victim in the act of a crime.  When a crime is committed against a person, they have a need to feel that their value in society is respected by punishing the person who wronged them.  If you start declaring that rapists are suffering some kind of psychiatric disorder and they should therefore not be punished, you devalue the status of rape survivors.  They haven’t been wronged, they’ve just had an encounter with people who deserve our help and pity.  It gets a bit gross down this end of the conversation.

The more I think about this concept of justice, the more I’m confused why anybody would oppose it.  If the system can be used to create meaningful change in society, then it should.  The stigma surrounding convictions and prison sentences is damaging to the individuals involved.

There are some horrible positions in response to the social justice scheme.  Libertarians, for example, don’t like the idea of the State existing to pursue an agenda of social justice.  This version of the penal system is incompatible with the ‘minarchist’ conception of the State: why should law-abiding citizens pay for the rehabilitation of criminals?  How much of my salary belongs to the disadvantaged person who won’t get a job and pull themselves up by their own bootstraps?

There are also hard edged positions in response.  Crime is crime is crime is crime, they would argue, and it needs to be punished.  Thinking about crime as a social problem is the sort of woolly-headed thinking that leads to being eaten.

For what it’s worth, I think that it’s an actual dilemma.  A morally excellent person could advocate for this version of a justice system.

So why don’t you?

Because it sits poorly with other things I consider virtues.  Under my scheme, the authority to punish the criminal is grounded in the criminal’s unlawful act.  Under the ‘social justice’ scheme, the authority to rehabilitate the ‘criminal’ is grounded in an aspiration to create a particular future state of affairs for everybody.  It’s a consequentialist scheme where  ‘punishment’ is a kind of social engineering (and even a form of wealth redistribution).

Kant, for example, argued that we should not treat other people as means to ends, but this social justice system does nothing but treat people as means towards ends.  Reeducation camps, for example, are extremely consistent with this view of the penal system.  The ‘criminal’ needs therapy in order to become a rehabilitated member of society, so we put them in a facility where they are conditioned to accept appropriate social values, &c.  The authority for these acts is not grounded in the acts of the ‘criminals’, but in the aspiration for a ‘utopian’ future.

I also believe that my respect of other people’s dignities involves considering them responsible for their actions.  The social justice version detracts from that individual responsibility and collectivises it.  Dr Jones isn’t a criminal because Dr Jones is a selfish, irresponsible dirtbag, but because society created Dr Jones.

The social justice element also fails to give expression to our need to be recognised as the victims of crime.  As I noted earlier, the rape survivor doesn’t want their attacker to be conceptualised as a victim.  They want to see their victim face justice.  When the white supremacist goes on a killing rampage, I want to see them brought to justice and not pandered to as if they couldn’t help themselves.

This aspect is often derided as an ’emotional’ or ‘visceral’ left over from our barbarian days, but I think it has an important place in our moral considerations.  I’m writing about the legal theory aspects of Game of Thrones, and there’s an interesting moment when Tyrion is given a trial by combat to decide whether he is guilty for the attack on the young Stark lad.  When Tyrion’s champion wins, Catelyn Stark looks visibly distressed.  Although the process of justice has taken place, it does not ‘feel’ like justice to her. There hasn’t been the atonement for the crime.  The criminal has gone unpunished.  This emotional aspect of justice, I argue, is the same sensation that causes us to get outraged at moral crimes in the first place.  Part of being a morally excellent person is finding a way to express and understand (rather than suppress and ignore) this non-rational aspect of justice.

Fair enough, but I still prefer the social justice version because it seems more pragmatic.  It doesn’t rely on big idealistic principles.

I hope I haven’t misled you into thinking that.  It’s still idealistic, but we have a habit of not thinking of consequentialism in terms of ‘ideas’ or ‘principles’.  It’s got a good run of being presented as the default rational position, but we shouldn’t believe it.

A conversation for another time, perhaps?

Sure.  Anything else you wanted to ask?

Nope.  I could sure go a drink.

So could I.

11 responses to “I seek to cure what’s deep inside… Countering my own death penalty argument”

  1. Is there going to be a part two for this discussion?
    I personally would argue against the death-penalty, but the conversation would be along different lines. Not because I have some moral belief in “life is sacred”, but rather that it’s one of the very few absolutes that exist. It’s not something you can ever afford to get wrong.
    If the State could draft “perfect” laws that defined crimes appropriately, and police and lawyers could prosecute those cases true to the intent of the law, then the system could work… but like any perfectly designed system, they fall apart when “people” get involved.
    How do you deal with corruption in the legal process? How do you handle a defendant with significantly more resources to defend themselves? Judges have bias no matter what we’d like to think, so one would be more likely to judge harshly than another. What about mistakes in evidence or identity, deliberate or accidental?
    I do agree that a “life sentence” is a cruel punishment, perhaps offer the convicted person a choice of death instead? How many would be likely to opt for that though!
    Having served on a jury for a double homicide and seeing first hand how the current system works, I would be extremely hesitent to advocate a system with such an “absolute” as death. If you make a bad call on that, does “oops, sorry, we made a mistake” really compensate?

      • Following your argument in that other post, I still tend to agree and disagree. I’m not against the death penalty itself, I’m against the application of the death penalty.
        In *absolute* cases, then sure. The guy in the UK that was undeniably hacking up that british soldier, no question, no qualms. I don’t think those absolute cases are that common though.
        There are procedural mistakes etc, and yes there is little way you can truly compensate someone who is found innocent after having spent years in goal, but is the alternative better? Having the survivng family vindicated, but now left with an even greater loss? In the case of a murder and a death penalty conviction on mistaken identity, you now have two innocents dead and possibly the real killer still free.
        I’ll take the time to read that other post you linked, but this is one of those things where the concept if great, but it fails in the execution (pardon the pun)… kinda like that joke about communism.

        • ‘I’m against the application of the death penalty.’

          Then we are in some agreement! One of the parts of my argument with which I struggle is the application such that it is more than just procedurally fair, but embodies our highest concepts of justice. But for the same reason I’m against implementing the death penalty, I’m against life imprisonment. You can never return to a person those years that they’ve lost.

          This opens up some space for a bit of a counter argument from me: if you wouldn’t be willing to execute the person, you shouldn’t be willing to lock them up for life.

          I’m glad you’re enjoying the argument! I genuinely think it’s a moral dilemma, so I’m not really out to evangelise the good news of capital punishment. It’s a space where people’s moral intuitions vary significantly and there might not be a single correct answer.

  2. I see two different discussion here. One is regarding the “value” of life/death, the other is if/where/when/how it should it controlled by people other than yourself.
    The whole life/death thing can be drawn against abortion, morning after-pills, self-defense, war, euthanasia, Hippocratic oath, neglect, and death penalties. It’s hard to take a binary position of “all bad” or “all good”, but I think in all cases it’s how it is applied or decided (choice/freewill) that really determines the morality or ethics rather than the death itself

  3. OK…I’ll bite, as the internets would have it.

    In conversational mode, insert as appropriate.

    There is a duty to protect society from some folk, which is why we incarcerate them. We don’t kill them because we’re better than that. But we do our best to protect society from the dangerous and psychopathic, the brutish and stupid, and the mere career criminals.

    For example:

    Tells the tale of a person I would happily drop in my oubliette if I were Vetinari: just for the protection of Ankh-Morpork, you understand. But I might not want to soil my hands with killing him, whereas Vetinari, I’m sure, would have no qualms. We’re all family: I wouldn’t want the Kindly Ones to single me out.

    • I am always mindful of how privileged I am to count you as a friend!

      ‘There is a duty to protect society from some folk, which is why we incarcerate them’

      The language here is interesting and it feeds into a concern I have about the justification for punishment. If you incarcerate a person to protect society, you are not grounding the punishment in the act of that person. This treats the incarcerated person as a means and not an end in themselves.

      ‘We don’t kill them because we’re better than that.’

      This is the intuition that I’m challenging. It feels more civilised to incarcerate, but the end result is the same: a person is taken away from society until they die. One method is quick, while the other punishment is of indefinite duration.

      Your example raises an interesting question: why do people get a lesser sentence on account of them failing to commit the crime? Attempted murder, for example…

      • On that last point, I’ve thought for a while that there is no difference in terms of moral culpability between attempted murder and murder, since it’s just a matter of luck.

        The best reason I can see for different sentences is a very practical one – if the punishment is the same either way, people have no disincentive against just trying again. In some cases, that won’t matter (I imagine most mruders aren’t doing careful cost-benefit analyses) but it’s a worthwhile consdieration, I think.

      • Er, thanks for the compliment, but I fear that makes me out to be a better or nobler person than I am.

        As for the rest, I’m not averse to giving the incarcerated a gilded cage by which society is protected: I am, after all, trying to be a decent and humane sort of person. Those who cannot be rehabilitated, and who pose a distinct danger to society, needs be kept away from society. If society is not civilised enough to pay for an humane gaol, then perhaps the death penalty is appropriate: it depends where one thinks we are, I suppose.

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