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

[Rana Dasgupta]

Thanks Jamie for detailed response!

First, I should make it clear that I am writing specifically and not 
generally.  I am not advancing a general theory of justice.  I am 
writing specifically about the death penalty, and specifically about a 
number of discussions that have occurred about this particular execution 
on and off this list.

One position that seems to have haunted these discussions is the 
following: It is only by executing a rapist and murderer that society 
can adequately express its abhorrence of this crime.  Conversely, to 
subject the perpetrator only to life imprisonment (and not execution) is 
to send out a message that society does not truly care about crimes 
against women.  This is the context for the "therefore" you question:

 > those who support some idea of
 > retributive justice, and who therefore see the grandest escalation of
 > violence as the most just and humane.

where the "grandest escalation of violence" refers to the application of 
the death penalty as opposed to non-capital punishments.

You are right to say that it is difficult to imagine a theory of justice 
in which retribution does not play any role.  That is why my comments 
remain specific to the issue of the death penalty.

However I think I differ with you on two fundamental points.  You say:

 > 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.

Here (in this last sentence) you are merely making an assertion, and as 
my previous posting made clear, I don't think this assertion to be true. 
  I proposed that there was an "intimate connection" between state 
killing and violence in society and that, therefore, the death penalty 
*is* part of a spiral of violence.  Clearly, I am not talking about the 
obvious kind of escalation you describe.  (You kill my brother.  I kill 
you.  Your brother kills me.  And so on.  Although legal systems based 
on the blood feud are not nearly so crude as this.)  The relations 
between a modern state and the people within its borders - and outside 
them - are too abstract to be mapped out like this.  I am suggesting, 
instead, that when killing is introduced as a legitimate resolution of a 
social problem that this fact inhabits all social relations.

Such a position requires me to comment on another of your statements:

 > (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.

It is clearly correct to say that the state is a different kind of actor 
from individuals but this should not be understood to mean that there is 
some kind of hermetic division.  The state chooses certain terms by 
which it will display itself and interact in society, and like any other 
actor in the world it thereby influences how other actors will interact 
with it and with each other.  Thus, though the state may have the last 
word in a specific chain of actions (A man murders - the state executes 
him) there is no reason to think that the effects of this decision to 
use fatal violence end at that point.

Among such effects are the kind of displays I described in Calcutta. 
You say:

 > 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.

This seems very disingenuous to me.  You have already acknowledged that 
the state must take moral responsibility for its actions, like any other 
actor.  On the other hand, you say that the state shoud not have to take 
responsibility for the consequences of its actions.  This does not seem 
to be taking moral responsibility at all.  Again: you seem to say on the 
one hand that the judiciary derives its legitimacy from the public and 
that its decisions represent the will of the public; and on the other 
hand that it has no involvement in what you call the "unsavoury" 
response by the public to its actions.  You may say, and you do, that 
such a response to a state execution is not a necessary part of the 
whole ceremony.  I don't think this is true.  At least on the basis of 
the few executions I've followed in India and the US there is *always* a 
dramatic outpouring of both abhorrence and ghoulish fascination.  This 
is a wholly predictable consequence of executions.

Part of the disagreement here arises from an ideological difference as 
to what the "state" is.  In your mail you at times use the terms "state" 
and "community" interchangeably, and you present a position in which the 
legislature and judiciary are imagined thus:

 > it seems that the whole point of a detached
 > legislature and judiciary is that they have no immediate personal
 > interest in the case. [...] 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.

This is clearly a very controversial position.  Why should the judiciary 
only have this one vested interest?  And is there no conflict between 
"just" and "well-ordered"?  Most importantly, let's remember that 
executions are often approved not by members of the judiciary but by 
senior members of the executive (the President in Dhananjoy Chatterjoy's 
case; by State Governors in most US states) and that they cannot 
therefore be so easily detached from politics.  When Bill Clinton 
approved the execution of mentally handicapped Rickey Ray Rector in 
order to avert charges of being "soft on crime" during his presidential 
campaign in 1992 was he only ensuring a just and well-ordered society? 
Is not the whole politics of the death penalty in the US an integral 
part of broader divisions about the purpose and nature of state power?

I would agree with you that my opposition between the "transcendental" 
and "pragmatic" state is not exhaustive and therefore I'm not going to 
try and take it too far.  As far as I'm concerned, however, the central 
point still stands.  The license to kill an individual in order to 
punish them for their actions endows an awesome power, real and 
symbolic, which puts the state as close to God as anything there is on 
earth.  It is clear why the state might wish to occupy this symbolic 
position; and executions are moments when it is dramatically reasserted. 
  But I think for any kind of imaginative and ethical freedom we have to 
deny to the state this total occupation of the terrain.

R




Jamie Dow wrote:
> 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
> 
> 
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