Writing in the second half of the 19th century, a Russian philosopher-theologian by the name of Vladimir Solovyov predicted that soon all “civilized” nations would abolish the death penalty. The reasons, for him, were obvious. Since the United States is one “civilized” nation that has failed to embrace the obvious, Solovyov’s responses to common arguments in favor of capital punishment are worth rehearsing.
The first argument in favor of the death penalty is the argument for retributive justice. It understands justice in terms of a kind of balance. The punishment must fit the crime—an eye for an eye, and all that. Dante’s Inferno makes use of this idea. The gluttons in hell are punished by rolling in filth like hogs, and the wrathful bite and claw at each other for all eternity, etc. Retributive justice means that the punishment must fit the crime. Thus someone who steals has her hand cut off. Someone who murders is hanged.
Solovyov thought retributive justice was a ludicrous idea. It will help to understand why if one considers the influence of his Christian faith, which does not view evil as a kind of negative energy opposed to God’s positive energy. Rather, God is good; God is the source of being; and so anything that exists comes from God and is good to a certain extent. Evil is a corruption of the good. It is like moving from 10 to 9 on a number line that has no negative values. Any reduction takes away from the good of the whole. So, if there are 100 human beings, and you take away one, that is a negative. If you exact retribution by taking away another human being, then you have another negative. How is that justice? We have only harmed ourselves. Society is diminished by any death, even the death of a murderer. No matter how heinous the crime, nobody is beyond redemption. Someone serving a life sentence may have something yet to contribute to the common good.
A second, popular argument is less metaphysical and more practical. It is the argument for deterrence. This argument is pretty simple. It says that the death penalty helps keep crime in check. The fear of death creates an incentive for not committing violent crimes. We have fewer crimes because we execute criminals, and by extension we would have even fewer crimes if we executed even more criminals. The logic works the other way too. Take away deterrence, and the result is more violent crime.
We know now that there is no evidence that deterrence has any effect. States in the US that do not have capital punishment have lower crime rates than those that do. Countries without capital punishment also have lower homicide rates than in the United States (though many other factors come into play).
Solovyov did not have the benefit of such data. But to him, the argument for deterrence made no logical sense. There are two types of murders— (1) murders of passion and (2) murders of premeditation. Someone who commits a murder of passion is not thinking straight, and so deterrence will have no effect because such a person does not stop to consider the consequences. We cannot expect forethought to apply to a situation where forethought is precluded by definition.
Then there are premeditated murders. Human beings are very bad at making accurate predictions about the future. It is worth considering whether someone who is pondering homicide would be willing to risk life in prison but be unwilling to risk the death penalty. The more something involves us directly, the less rational we become. That is why there are such things as debt, the lottery, and underfunded 401k’s. Russia back in his day executed a lot of people, and yet murders still happened. A person commits premeditated murder because he does not think he will get caught.
Some might say that the weakness in this argument against the deterrence effect is that we can never really know how many crimes the threat of capital punishment has deterred. After all, such crimes have never been committed. In formal logic, this is called an argumentum ad ignorantiam. It would be like a prosecuting attorney saying that the lack of evidence proves the defendant is a criminal mastermind. Or to offer a more extreme illustration, it would be like saying that vampires must exist because you cannot prove they don’t.
The final argument is neither metaphysical nor practical. It is ethical. One might call it the argument for nobility. It goes like this: We have capital punishment because, as a society, we have decided that there are just some crimes we absolutely will not tolerate. Some acts or so heinous, that those who commit them forfeit their right to exist. Thus justice and deterrence are not the point. The point is about our values. It is about our society putting down its collective foot and shouting a firm and clear, “No!” in the face of the monstrous.
I must admit that I find this argument compelling. But it still has its problems. If I follow the nobility argument, then the line I draw in the sand is one I step over in the very act of drawing it. The message we send with this argument is that we, as a society, value life so much that we will take the life of one who takes it. This is an argument for fools and hypocrites—fools who cannot see how oxymoronic it is and hypocrites who simply do not care.
A related problem comes with comparing crimes to each other such that one level of crime deserves death, and another level of crime does not. But crimes cannot really be quantified and compared in this way. Things are pretty straightforward when comparing murder to vandalism, but what about murder to date rape or pedophilia? Which is more heinous, for an 18 year old kid to nervously shoot a 90 year old man in a robbery, or a father to molest his son for over a decade? Most proponents of the nobility argument stick to murder, which sends the message that other crimes are not as reprehensible. Even in the case of murder, a man who is put to death for murdering 22 women sends the message that a woman’s life is worth 1/22 of a man’s. That is not very noble.
None of these arguments is about justice, nobility, or deterrence. They are about bloodlust. I have not even mentioned the racial or class disparities when it comes to meeting out our vengeance disguised as justice. Nor have I mentioned wrongful executions, which have most certainly happened. What does that say about our noble ideals?
I think it says that we do not really care who we kill or why. We just want to kill someone. Then we can tell ourselves that justice has been done. But it hasn’t.