As discussed before, I’m against the use of the death penalty for the two Bali 9 drug smugglers in Indonesia despite being in favour of the death penalty. My argument there didn’t engage any discussion about the moral quality of the death penalty; my position was simply that drug smuggling didn’t warrant permanent removal from society (an assertion that I didn’t really bother to argue).
I do find it odd, all things said, that so many of the advocates for Andrew Chan and Myuran Sukumaran have tried to engage with moral arguments against the death penalty. The specifics of Chan and Sukumaran are irrelevant in the discussion (except, perhaps, to the extent that they’re Australian and Australia provided Indonesia aid after a tsunami). Do Chan and Sukumaran deserve to be punished? For most advocates, that question doesn’t seem to matter, just so long as the death penalty isn’t used.
As a result, the public space has been flooded with, frankly, garbage arguments against the death penalty. Here are five stupid arguments and why they’re stupid.
The death penalty doesn’t work
The argument is a simple one: the death penalty does not stop crime and therefore does not work. ‘Work’ here is taken to be functionally equivalent to ‘deters crime’. This was an argument taken up by ABC Fact Check recently.
Should we ever punish a person to deter crime? No. It is never justifiable to inflict some suffering upon Peter in order to influence the actions of Paul tomorrow. In order to inflict some suffering upon Peter, we need to explain it in terms exclusive to Peter: ‘Peter, we are punishing you because you did something wrong and you deserve this punishment.’
We can see the absurdity that results when you start treating Peter as a means to influencing Paul. Imagine that there were some punishment so severe that you could inflict upon Peter that you would be certain of influencing Paul — would you be justified in inflicting that punishment? It seems not: ‘Peter, you don’t deserve this punishment, but it will stop Paul from committing the same crime tomorrow.’
If we really thought that the purpose of criminal law was to deter criminals, surely we would have given up on the project centuries ago. Despite the punishment for the law of murder, there are still murders. Further, what punishment outside of white collar crime has actually proven to have a deterrent factor. People still murder despite the existence of prisons. If no deterrent works for a particular crime, are we morally prohibited from punishing people?
It could be argued that this assertion from abolitionists is in response to death penalty supporters who think the death penalty has some deterrent factor. That is, it’s not an argument that stands alone but only exists in response to an earlier claim.
While that might have been true in the past, it’s increasingly becoming a justification in its own right. Despite my position on the death penalty not relying on consequentialist intuitions, I routinely hear it as a reason why people are against the death penalty. People are against the death penalty because it doesn’t ‘work’, but their definition of ‘work’ — as we’ve seen — is grossly immoral.
Imprisonment is reversible but the death penalty isn’t
It’s easier to start with my argument and build up from there. If there is a reasonable doubt that the person is guilty, I don’t think we should be removing them from society forever. Indeed, if there is a reasonable doubt that the person is guilty, we’re not justified in punishing that person at all. Punishment is only justified if the person did the crime. If it can’t be shown that the person did the crime, we aren’t justified in punishing them. Does this mean that more guilty people would be set free? Yes. But that is a far better proposition than punishing an innocent person, regardless of your position on the death penalty.
This also goes to the heart of the problem facing minorities in the courts. The jury system (which I loathe) brings with it a vast number of prejudices against minorities, reflected in the verdict rates. But, once again, if the system has a prejudice that results in innocent people being found guilty, then the system itself shouldn’t be meting out punishments, regardless of what punishment you think is justified.
This gets us neatly to the assertion that imprisonment is reversible. The argument is that the flaws in the justice system can be overlooked because you can simply release people if you make a mistake. ‘Good thing we didn’t kill you, enjoy the rest of your life. Have some money if you’re entitled to compensation.’
This approach radically underestimates the sheer violence done upon the quality of a person’s life when they’re imprisoned. Especially when they’re wrongfully imprisoned. A person wrongly gaoled for a decade might have missed their children growing up (not to mention the distress on the child from having an incarcerated parent). They might have missed loved ones passing away. They’ve missed opportunities to enjoy events that will never be repeated. They’ve missed opportunities to make use of the years that have been taken away. Imprisonment is not a punishment that can simply be ‘reversed’ if the system stuffs up.
But even if I agreed that imprisonment could be reversed, does that mean I’m justified in inflicting an unethical punishment upon somebody? My argument is that life imprisonment is a form of torture where we turn the act of living into a punishment. It seems frankly absurd to suggest that torturing a person (if you accept my intuition) is better than executing them simply because you can stop torturing the person.
Further, there are some situations where there is no doubt. The accused was caught in the act of executing people. Open and shut case. Do we still imprison them (/torture them) simply because we could release them if they were — beyond all possibility — innocent?
The death penalty is State-sanctioned murder
And taxation is theft, apparently. Murder is the unlawful killing of another person. The death penalty is the lawful punishment of a person who deserves to be punished. The death penalty, by definition, cannot be murder. Besides, life imprisonment is merely the death penalty performed slowly.
The death penalty means that the criminal can never rehabilitate
Similar to the ‘we punish people to deter them’, this argument assumes that one of the reasons we punish people is to change them. It makes an intuitive kind of sense: we punish children so that they internalise social norms about self discipline and social acceptability. Is the State like some kind of parent who punishes us when we err so that we can learn the error of our ways, transforming into socially productive cogs in the machinery of the polis?
There’s a reason we find ‘reeducation camps’ repugnant. We worry when people are punished in such a way as to influence their attitudes, dispositions, and beliefs. The Catholic deserves the punishment because it would rehabilitate them into becoming a Protestant. The dissident deserves the punishment because it would rehabilitate them into becoming a party loyalist. The conscientious objector deserves the punishment because it would rehabilitate them into becoming a good soldier.
And so on and so forth. The core of the problem is that the punishment goes beyond the purpose of the crime. You’re no longer punished because of something you did in the past. You are punished because of something you have the potential to be.
Even if you don’t accept the Kantian ends and means argument, there’s a more practical problem — what if no punishment would rehabilitate a person? Or what if the suffering inflicted upon the person would rehabilitate them, but would be excessive? In these cases, we understand that the rehabilitative element of punishment is not central or even primary as a goal: the fact the punishment must meet the crime overrides those considerations.
We can dig into that a bit deeper. If the only punishment which meets crime X is permanent removal from society, can a person released after rehabilitation be said to have served a punishment which met crime X? Try it a different way:imagine that the punishment for a crime is ten years in prison but, after five years, they show that they’ve rehabilitated. Is it just to release them early, resulting in a punishment that was less than merited for the crime?
If the overriding consideration was that punishments should meet the crime, then no amount of rehabilitation should be considered a moral reason to cease the punishment. We appear to have a wrong intuition that lesser punishments are better punishments — where the suffering that would rehabilitate the person was greater than the punishment that met the crime, we preferenced punishment; but where the suffering that would rehabilitate the person was less than the punishment that met the crime, we preferenced the suffering.
This brings us back to the start: so what if the death penalty removes an opportunity to rehabilitate? We only care about rehabilitation (intuitively) when it results in less suffering than the punishment. But the death penalty, performed humanely, is the punishment that provides the least possible amount of suffering for a criminal who is to be removed permanently from society. Thus, the rehabilitation question never arises. Further, we shouldn’t care about rehabilitation anyway because it is an immoral purpose to punishment.
Okay, let the criminal decide between life imprisonment and the death penalty
This is the response I hear most frequently in response to my argument about the death penalty: if life imprisonment and the death penalty are equivalent punishments performed in different ways, let the criminal decide which punishment they’d prefer.
The major problem with this line of argument is that it discharges the person inflicting the punishment from their moral duty to treat others morally. Either the death penalty is immoral or it isn’t. Just because a criminal wants it to be inflicted upon them does not change the moral quality of the death penalty. If abolitionists are serious about their opposition to the death penalty, then they shouldn’t prefer it, even if the criminal does.
Similarly, from my perspective, just because the criminal wants life imprisonment, I’m not justified in subjecting them to unending suffering through indefinite detention.
But we can see why this argument fails in other ways: the criminal might not always choose the option that is the most moral. Consider the situation that arises if we were to live in a jurisdiction that sanctioned whipping as a justifiable punishment (a punishment that I imagine most people would consider to be immoral). The criminal is given the option: ten lashings or six months in prison. Many people, I imagine, would prefer to take the blows and then go home afterwards. If they wouldn’t, increase the term of imprisonment until the dilemma arises. The whipping never becomes justifiable simply because the criminal would prefer it to imprisonment for a term.
Face it: most people oppose the death penalty because they’re squeamish. Doing the right thing is hard. Unable to live up to standards of moral excellence, we look for excuses to shirk our duties. Mainstream arguments against the death penalty are pathetic. One person has even argued that the only reason a person would be in favour of the death penalty is because they lacked empathy. Not only is this false, it also reveals the posturing at the heart of the conventional debate. Abolitionists want to appear compassionate, enlightened, and liberal; retentionists want to appear tough, resolute, and unyielding in the face of crime. But all that means is that the rational conversation about the ethics of punishment — even beyond the death penalty — gets ignored while we play our role in the theatre of public discussion.
There were some vile things written in favour of executing Sukumaran and Chan. Nothing excused it. There’s little doubt that those things were written specifically to appear ‘edgy’ and controversial, trollish click-bait. But just because so many advocates of the death penalty are utter clowns, we shouldn’t ignore the meaty problems about how we justify something as basic as letting the State inflict violence upon us.