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]].