[Reader-list] death penalty - the morality of states and individuals

[Jamie Dow]

I've been watching this debate for a bit, on and off, and, Rana, your
contribution caught my eye today! I'm surprised at it - it seems really
wayward ...... ! Here are a few thoughts.

There's much right in what you say that it perhaps seems churlish to fault
the reasons you give for (probably) a correct conclusion. Nevertheless.....

You're of course right to say that acts of the state are moral acts. (Are
there *any* acts that are exempt from moral scrutiny?!!!) Likewise, you're
right that executions do not follow *inevitably* from certain kinds of
criminal behaviour - they require the state to choose to exact a particular
penalty. All well and good.

But it seems to me that you are guilty of the same "false choice between
extremes" arguments that you criticise in your opponents. You offer the
following alternatives:
(i) Judicial executions are non-moral, semi-divine, abstract, other worldly
acts, part of a natural progression from rape to gallows.
(ii) Judicial executions are a state-sponsored festival of violence.
Since it is clearly absurd to suppose that they are not the first, they must
be the second. Hmmmmm. Are these really the only two possibilities?

This is then founded upon, or elided into another inference, where your line
of thought appears to be as follows.
Since the press & public reacted to the Calcutta execution with bloodthirsty
glee, this must have been what they (who? - the judiciary? - the
legislative? - and when?) intended in having the death penalty for certain
sorts of crimes.
The inference is just flawed.

Further, as a pivotal foundation to your position, how is it that you argue
that the state can only take pragmatic decisions? Your terms here
"pragmatic" vs "transcendental" seem very slippery - it's almost as though
they were designed for just this argument, i.e. "ad hoc". Again you offer
only two possibilities, and the main worry about these terms is that they
exclude all the most important options relevant to this debate.

I take it that those who argue for the death penalty are not stupid. Even if
their conclusion is in the end incorrect. In relation to the points you
raise, the crucial moves made by advocates of the death penalty are as
follows.
(1) One of the functions of a judicial system is to execute justice in the
cases that fall within its scope.
(2) There is a difference between state / community agency and individual
agency, even though many of the same norms apply to both individuals and
states/communities.
(3) Part of justice is exacting a penalty from a wrongdoer.

It sounds as though you are inclined to deny (3), although many truly absurd
consequences follow from denying this.
Your alternative terms "pragmatic" and "transcendental" make it very unclear
under which one executing justice (1) would fall. I assume you'd agree with
(1).

Now, in relation to (2), it seems that the whole point of a detached
legislature and judiciary is that they have no immediate personal interest
in the case.
So, if you harm me, there would be something just about my exacting revenge,
but since the likelihood is so high that we would not see the rights and
wrongs of the issue the same way, the danger is similarly high that a cycle
of violence will escalate.
The point of a detached judiciary is that people (judges / a jury) with no
immediate interest in the particular case decide it. They are not without
any vested interest, but their vested interest is in having a just and
well-ordered society. That is why their actions in exacting penalties,
dictating terms of restitution, etc. are unlikely to result in an ongoing
spiral of violence. And, indeed, even in societies which continue to use the
death penalty, *this much* at least is achieved.
The position was dramatised  in the 450s BCE by Aeschylus in *The Oresteia*.
You need to take issue with this *real* position, not some straw man, or
flimsy patchwork of popular beliefs, surely. My remarks above make sense of
why it remains a constant and utterly vital battle to keep personal and
factional interests out of the judiciary, and in fact (a more subtle matter)
out of the legislative too, and have these reflect more impersonally the
deepest most common-sense and most shared intuitions of the people as a
whole. Those who campaign and think in this area deserve the greatest
support.

Finally, your last swashbuckling paragraph:
"those who support some idea of retributive justice, and who therefore see
the grandest escalation of violence as the most just and humane"
What's going on in the "therefore" here?
(i) A supports some idea of retributive justice
**therefore** (ii) A sees the grandest escalation of violence as the most
just and humane.
Do you really think that ii FOLLOWS FROM i? If so .... er..... how?

I've not found many philosophers or jurisprudence folks who seriously deny
that retribution is part of justice. I can't think of one (although probably
Posner in the US does, but he's not the sort of debating ally you want!).
Retribution is in the warp and weft of vast swathes of most countries'
criminal law, not just in relation to the death penalty. I'd normally think
of the law in the following way (funnily enough, same as Aristotle's view of
the law) - that it embodies our fundamental common-sense intuitions about
matters of morals and matters of human agency. Especially where it consists
in case-law refined over a long period, it constitutes an extremely
significant set of base data that people trying to make sense of ethics kick
over at their peril. In doing so, they usually find themselves kicking over
both common sense and our best moral intuitions.


Of course, a bloodthirsty glee at an execution is all wrong. But that
doesn't always happen in the aftermath of executions. So it rather suggests
that some other factor was at work in Calcutta. I'd be interested in digging
a little deeper to see what that was. It does sound like some pretty
unsavoury forces at work.

In the end, I think that the death penalty is not right, because of problems
of judicial fallibility, and because I'd want to weight the balance of
considerations more towards holding out the possibility of reform,
restitution, mercy. I think that the reasons you give, and the terms in
which you frame the argument, don't really allow the possibility of even
making a case for the death penalty - when understood in your terms, to
suggest the death penalty comes out as so utterly ludicrous a position, that
one is quickly led to think that these are not the right terms in which to
make sense of the debate. Or, throughout history, has it only ever been
utter idiots who have thought the death penalty right?


Or have I been the idiot and misunderstood what is being said here?!
Best,
Jamie







-----Original Message-----
From: reader-list-bounces at sarai.net
[mailto:reader-list-bounces at sarai.net]On Behalf Of Rana Dasgupta
Sent: 24 August 2004 11:14
To: reader-list at sarai.net
Subject: Re: [Reader-list] campaigning against death penalty


Thanks for interesting debate on this issue.  Just wanted to comment on one
aspect stated by Rahul thus:

>> But there is
>> something that  we must make distinctions about and separate - for eg.
>> the debate for and against death penalty should not be linked to the
>> tolerance or intolerance of sexual violence against women.

I completely agree.

Some of the discussion about this issue has seemed to imply that there is
some kind of absolutely natural progression from rape (or other violent
crime) to the gallows.  As if all that needed to be debated was the precise
equation of equivalent suffering for the crime's victim and its perpetrator,
and as if the mechanism of the second, reciprocal act of violence did not to
be considered - as if it were abstact, sublime, other-worldly, semi-divine.

If you see the question in this way then you will respect those who call for
the greatest possible violence in the second instance, for it is only they
who have truly grasped the scale of suffering in the first.

But the execution of a criminal is as much a moral act as the original crime
itself, and those who support it and implement it must bear responsibility
for it and not pretend that it is a wholly natural result of the criminal's
actions.  Having found myself in Calcutta at the time this execution
happened and been confronted in the mornings with the obscene journalistic
extravaganzas of sadistic, ghoulish, bloodthirsty glee, I find it very
difficult to read this punishment as simply that - a punishment.  Were the
readers of those papers waiting painfully for thirteen years for the
suffering of this girl to be finally answered, did they see the events of
august 14th as a final closure to a community's anguish?  Frankly, I think
not.  I think this was a state-sponsored festival of violence, unfolding
with thrilling twists and turns to its final, inevitable, awe-ful display.
And to me, such a festival of violence gives tacit consent to all the most
perverted fantasies of the co
mmunity, including the very desire to see other humans utterly humiliated
and obliterated which lay behind the original crime.  To me, such a
celebration raises the stakes of violence in a society as a whole and is
*intimately connected* to violent crime as perpetrated by individuals.  It
is not separate or above it; it is not an antidote or a closure.

As we know from contemplating the fates of grand architects of suffering,
such as Milosevic or Hussein, there is nothing that a society can do to
right the historical balance of suffering once it has happened.  This is
unfortunate - tragic even; but it is true.  Suffering and death are facts
which transcend the ability of human beings to make amends.

If you call upon the state to right the suffering of history by visiting
equivalent suffering upon the perpetrator you are implicitly giving the
state a transcendental role in human affairs.  You are calling on it as
previous eras called upon God to bring destruction and misery upon their
enemies.  But the state does not have a transcendental claim to power.  It
has only a pragmatic claim.  It can make pragmatic decisions - to remove a
violent man from social intercourse, for instance - but it cannot restore a
community's innocence, or erase suffering.  None of us can expect this from
a human institution, and we should never give such an institution the
freedom to act as if it had this transcendental power.

I don't think there can be a pragmatic argument for the death penalty.  If
the death penalty actually reduced the amount of violence in a society then
America would be pretty much the most violence-free place in the world
(after China and Iran).  This is to say nothing of the fact, of course, that
sometimes states execute people who are then found to be innocent.  In this
situation it really is tough for them to make amends.

Let not this discussion be cornered by those who support some idea of
retributive justice, and who therefore see the grandest escalation of
violence as the most just and humane.  I think the Bushian "double
blackmail" mentioned by Nisha in the discussion on this list has indeed
taken over the debate to an unfortunate degree, and that it has no merit.
It is a depressing, even maddening thing to have to accept that there is no
total, otherworldly justice for horrendous crimes; but let us not become
savage ourselves as a result.

R


Rana Dasgupta
www.ranadasgupta.com