Notes on Glossip v Gross: The theatre of the death penalty

As a supporter of the death penalty, it has been interesting to see the public response to Glossip v Gross — especially following the very progressive decision in Obergefell v Hodges.  To no small extent, it feels like Glossip is less about the legal arguments and more about the nature of the death penalty.  Certainly the dissenting opinion appears concerned more with opposition to the death penalty rather than the specifics of the case at hand.

For me, this case raises very awkward questions about the pragmatics of the death penalty, rather than philosophical or theoretical discussion of the death penalty itself.

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He’ll be working in a small box, till he die… Five stupid (but common) arguments against the death penalty

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.

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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?

No.

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.

Conclusion

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.

Old time grudges will die so slowly… In favour of death penalty #troydavis

In a previous post, I noted my discomfort at being on the pro-death penalty side of the debate.  On average, an abolitionist will be more intelligent, more well informed, and more rational than an advocate of the death penalty.  Those of us on the advocate side are more likely to be pitchfork-wielding weirdoes, spouting mantras of ‘an eye for an eye’ and ‘deep fry his ass’.

If I had the slightest excuse to change sides, I would.  I was an abolitionist until my final year of university and I remember the day and the hour that I changed positions.  It was a horrifying moment: up until that point, I thought all advocates were pitchfork-wielding weirdoes and, yet, the foundation of the abolitionists argument was utterly flawed, and the advocate was — despite most of us having utterly ridiculous arguments — ultimately correct.

Abolitionists misconceive life imprisonment.  They argue that a person imprisoned can be released (but a dead person cannot be revived) and that life imprisonment is more humane than death.

You can never repay a person the time they’ve spent in prison.  Imagine that a person’s innocence is proven after they’ve spent two decades in jail: how do you give that person their time back?  How do you heal the psychological damage imprisonment does to a person?  Their family might have moved on, some might even have died.  The question which ought to be asked is: regardless of whether you’re abolitionist or retentionist, why is it possible for innocent people to be found guilty of crimes they didn’t commit?

Further, what sort of life is life imprisonment?  If a convicted person is treated for illness, it extends the duration of their punishment.  How can we not find this barbaric?  It’s a basic dignity that we do not punish people indefinitely, and yet abolitionists promote it: people convicted of certain crimes should be imprisoned for an indefinite period of time, prevented from euthanising themselves, where their entire life shall be suffering for a past crime.  It’s inhumane.  John Stuart Mill said it was akin to being ’embalmed in a living tomb’.

Abolitionists have false consciousness about life imprisonment.  Life imprisonment is the death penalty performed slowly.  The felon dies of indefinite incarceration following a lengthy period of time in which their liberties were curtailed and which radically reduced their quality of life.  It is flatly barbaric: we treat animals with more dignity than we treat people.

But, as a retentionist, I am confronted by issues like the Troy Davis one.  Davis’ case strikes at some fundamental pillars of our justice system, but there are a few introductory notes.

It is not clear that Davis was innocent or that he should have been found not guilty.  A lot of commentary has asserted that he was innocent of the crime: but the people voicing this point of view weren’t there.  If they knew for a fact that he was innocent, they should have appeared at his trial.  It would have saved a lot of bother.

There is nothing persuasive to say that he should have been found not guilty.  There have been accusations that the police coerced witnesses, but these haven’t been proven.  Davis ran the gamut of appeals and the conviction was upheld.

Both paragraphs adopt a view of procedural justice: if the correct procedure has been followed, the decision — regardless of how it matches ‘reality’ — is just.  I’m not particularly a fan of it for a variety of reasons.  Not least: a proceduralist account says that a person is guilty only if they have gone through the process of being found guilty, not only if they committed a wrong.

But our justice system is built on the principle of procedural justice.  It prevents inquisitorial-style trials and raids of your home without warrant.  We don’t let the State determine facts by hook or by crook: if evidence was obtained without going through the correct process, it is inadmissible, even if it would mean a guilty person would walk free.  Batman is the antithesis of procedural justice.

The last two paragraphs present a serious tension in the way we should view the justice system.  In the ideal world, the procedural view would give the same result as the absolutist view: the procedure ensures (not coincidentally or accidentally) that all guilty people and only guilty people are punished.  But we don’t live in an ideal world, so there is a real predicament.

From a procedural point of view, Davis was guilty.  As he was found to be procedurally guilty, it was just and appropriate for Davis to be executed.  If it can be proven that the police behaved inappropriately in order to obtain a guilty verdict, they should be tried for Davis’ murder.

My concern in that the procedure for finding and appealing guilt in the US is problematic.  In this case, where it seems that so much doubt can be found — even if we only accept a fraction of what the uncritical champions of Davis assert — how could a guilty verdict stand?  Either there’s something rotten in the state of Denmark or the media is not reporting the case accurately (maybe a bit of both).

In the same week that Davis was executed, Lawrence Russell Brewer was executed for taking part in a gruesome murder motivated by white supremacist crap.  Brewer was unrepentant, admitted his guilt, and took pride in his act, stating that he’d do it again.

First, why didn’t Amnesty champion this guy’s right to life?  It’s harder to sympathise with the abolitionist’s argument when there are clear cut examples of guilt where the only humane punishment is execution.

Second, cases like Davis’ make for good intuition pumps, but cases like Brewer’s create unnerving ambiguity.  If abolitionists want to make a persuasive argument against the death penalty, it can’t be tied to an individual case.  For every case like Davis’, there’s a case like Brewer’s as rebuttal.

It was also pointed out to me that Davis was put on suicide and self-harm watch (SASH watch) prior to his execution.  I was told that this was hypocritical and insane: why would you ensure that a person was kept healthy and well just so the State could execute them?

My case above should show us why: my sort of retentionist position is vastly different to the retributivist model of an eye for an eye.  There’s no gloating or chest thumping when I argue that a person should be executed instead of being imprisoned indefinitely.  My position — and I wish it were the position of all retentionists — is one which promotes the dignity and civility of our justice system.

Abandoning a person to execute themselves, failing to use SASH watch, is to take a barbaric view of the process.  This isn’t ‘death by any means possible’; this is death at an allocated hour by an allocated method, up until which you have the opportunity to appeal and to be treated with the dignity and respect we afford all criminals.

Cases like Davis’ challenge my view of the death penalty, but it is clear that the death penalty is more humane and more just than the alternative.  Although most retentionsts advocate crude and brutal forms of the argument, nuanced and reasonable retentionists should attempt to persuade abolitionists that all reasonable people are concerned about the humane and ethical punishment of criminals.  Neither side has a default rational claim on the moral high ground, and death penalty remains a genuine ethical dilemma.

Terrorists, your game is through… the moral quagmire of killing Osama

A friend of mine, Tom, has written an interesting post on the killing of Osama bin Laden.  Despite Christ’s statements about forgiveness and the commandment not to murder:

This was a man who through his acts had forfeited his right to life. The world is a better place without Osama Bin Laden in it. Had he been captured and brought to trial, he would have used it as a pulpit to preach his twisted version of Islam, bringing further grief, suffering and division to a world that already has enough of all three.  [Source]

There’s a lot to grapple with there, so I’ll return to it in a moment.

The primary problem with arguments about the situation is that there are so many ways to conceptualise the issue.  Is this an example of the President (/Executive) issuing an instruction to kill a person?  Is he just authorising the killing?  Was the death a result of firefight in which US forces were responding proportionately to a threat?  And so on and so forth.  For the sake of simplicity, I’ll paint in broad strokes.

It is also useful to note that there might be a spectrum of good answers.  I don’t think many people would disagree that a good situation would have been the capture of Osama, with him given a fair and unbiased trial.  ‘Fair and unbiased’ are weasel words: when you’re global public enemy number one, where are you going to find an impartial jury?  Mars?

So, being reasonable people, we have to settle for less-than-perfect.  A trial which was mostly fair, for example.  A firefight death where US forces were defending themselves, I think, is a less-than-perfect but acceptable situation.

Back to the question of Obama issuing an instruction to kill.  Does this constitute ultra vires?  Can the President declare a person guilty and decide punishment (in this case, death)?  Isn’t this the role of the justice system?  Y’know, due process?

This line of reasoning assumes that our division of powers between different branches of government is necessarily correct.  Perhaps if the Executive doesn’t have the ability to mandate a death penalty for somebody like Osama, there’s something wrong with the system.  Further, even though we live in a society which exalts procedural justice over all other conceptions, just deviating from the process does not entail immoral outcomes (just procedurally unjust outcomes).

Most people intuitively think that our justice system is pretty good, so it seems fair enough that the burden shift to advocates of granting the Executive this new power to make the case.  Good luck with that.

The other response to this problem is to substantially ignore it.  Sure, in an ideal world, the Executive wouldn’t be judge, jury, and executioner.  But, in an ideal world, there wouldn’t be Osama bin Laden.  You didn’t think of that, did you, Mark?  No, you didn’t.  Extreme situations — like politically advantageous villainy — requires extreme responses.  Due process can get stuffed.  I bet you haven’t even used the word ‘Realpolitik’ today.

Tom asserted that bin Laden had ‘forfeited his right to life’.  Kant argued that our rationality entailed our innate rights and our obligation to be moral.  As the Stanford Encyclopedia puts it:

Kant held that every rational being had both a innate right to freedom and a duty to enter into a civil condition governed by a social contract in order to realize and preserve that freedom. [Source]

It ought to be noted that Kant was an advocate of capital punishment:

The retributivist theory of punishment leads to Kant’s insistence on capital punishment. He argues that the only punishment possibly equivalent to death, the amount of inflicted harm, is death. Death is qualitatively different from any kind of life, so no substitute could be found that would equal death. Kant rejects the argument against capital punishment offered earlier in his century by the Italian reformer, the Marchese Cesare Beccaria, who argued that in a social contract no one would willingly give to the state power of his own life, for the preservation of that life is the fundamental reason one enters a social contract at all. Kant objects to Beccaria’s claim by distinguishing between the source of a social contract in “pure reason in me” as opposed to the source of the crime, myself as capable of criminal acts. The latter person wills the crime but not the punishments, but the former person wills in the abstract that anyone who is convicted of a capital crime will be punished by death. Hence one and the same individual both commits the crime and endorses the punishment of death. [Source: ibid.]

I don’t think this quite captures all the important details of the Kantian position, focusing too much on Kant’s retributivism and not enough on his accounts of moral consideration.

It is possible, in the Kantian view, for a person to place themselves outside ordinary moral consideration.  This is alluded to in the SEP passage: ‘One and the same individual both commits the crime and endorses the punishment of death.’  By committing heinous acts against other rational agents, it could be argued that ObL was no longer a part of the moral community, possessed of the right to life.  By committing the act, ObL sanctioned his own execution.

It’s a difficult argument for Kantians to prosecute.  It certainly ignores the emphasis of virtue theory to respond well to other agents regardless of their actions.  Here, it comes down to moral intuition: do we want to be the sort of people who respond to immorality with comparable acts?

All of this is a long way away from Tom’s justification for death: ‘The world is a better place without Osama Bin Laden in it. ‘

There are lots of people whose absence would make the world a better place.  It seems unreasonable to use a utilitarian argument to execute undesirables.  The world would be better off without racists, but it would be worrying if we started rounding them up.  The world might be better off without ObL, but that doesn’t mean he ought to have been killed.

Personally, I think trial was the better option and that we ought to be concerned that this wasn’t the option taken; even if it meant giving ObL a platform to espouse hatred.  The point of the War on Terror was to protect our socio-cultural philosophies.  If we abandon those principles in order to gain political advantage, what was the point of winning?

As a cursory ending note, regardless of whether you think the killing was justified or not, the gleeful, orgiastic response to the news is obscene, distasteful, and wholly inappropriate.  If we are to believe that killing somebody is just and righteous, we should do it soberly, somberly, and with sadness.

[[By way of declaring interest: I’m an advocate of capital punishment in principle (particularly for serial rapists), but we don’t have just and fair systems to accommodate it morally]].

While you’re at it, leave the night light on inside the birdhouse in your soul… which is possibly not an appropriate lyric here

I’m not sure what he’s playing at, but Tony Abbott made some very strange comments about capital punishment.  The Drum discussed it lightly here.

It’s sort of weird that I’m in favour of capital punishment for certain crimes — most certainly for serial rape and paedophilia — in an age where it strikes us as intuitively cruel and barbaric.  The problem with the discourse on the death penalty — indeed, the problem with most contemporary discourses — is that one side of the argument is made up of enlightened people with facts and the other side of the argument is made up of people shaking pitchforks and setting windmills on fire.  It worries me that conservatism has largely devolved to the latter.  So it becomes important for conservatives who aren’t narrow-minded, reactionary nitwits to express themselves well.