[Reader-list] death penalty - the morality of states andindividuals

[Jamie Dow]

OK.
There are some misunderstandings & talking-past-each other that are a bit
too detailed to be usefully covered on-list. Suffice to say that I think
that individuals and states MUST, as you say, take into account foreseeable
consequences of their actions, and so I'd very much want to uphold your
argument about the negative consequences of executions - the state must
indeed take these as reasons against having such executions.

You are right to clarify that it is a particular, and highly perverse, view
of retributive justice that sees the death penalty as the only adequate
penalty for, say, rape.

I take it your remarks about political involvement in executions strongly
reinforce mine about the importance of the independence of the judiciary.
These are complex areas, but the principles come out forcibly in what you
write.

I'm not sure, however, that your main point does stand.
==========
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.
==========
3 reasons:
(1) There are other ways of thinking about this, more common-sense, less
theory-laden ways, under which things look very different.
(2) I'm not sure how your argument is supposed to work, even on its own
terms.
(3) Again, you seem to move from "here is one way in which X might be
viewed" to "this is what the agent *intends* in this action" - you seem to
be inferring a particular *intention* in the state's action merely from your
own chosen way of viewing things. To show intention, you need to show much
much more.

To elaborate briefly.
(1) Noone denies that the power to kill is an awesome power to have. But for
this power to be in the hands of the state does not make the state anything
different from what it was already - a function of how a nation of people
choose to organise themselves, through representatives, officials, and so
on. In fact, I take it that those who support the death penalty normally
want to hedge it about with controls, so that it is not a political tool,
and so that the "state" is restricted from having a life of its own
independent from the citizens' views & intuitions about justice. The point
is that it's perfectly natural to view the judicary (and this point applies
across the whole of the judiciary's powers) as a mechanism for the
collective action of the people. And that is precisely the language used in
the US for criminal trials - "the people vs Smith". It doesn't involve some
quasi-divine outre view of the state or judicary. There are questions as to
whether these kinds of controls can be made to work in practice. But that's
a very different point from the one you made.

(2) Here's how I understand your argument:
[i] Killing is a power the state has.
[ii] killing is a power God has.
[iii] therefore (from i and ii) the state and God are alike in this respect
that they have the power to kill
Now, I'm not clear what follows from that. As someone said (maybe Bertrand
Russell?), everything is in *some* respect like everything else! You are
creative. God is creative. In that respect, you too are like God! But that
doesn't seem to be any reason not to use or assert or enjoy your godlike
creativity! Your other unargued assertions are
[iv] the state might have a desire to seem like God
this statement of possibility is certainly true - this is a possible desire
that the officials of state might have, and it might be a desire that the
citizens of a country might have for the way in which their organs of
government are perceived.
Then you move from the possible directly to a factual claim as though there
were some connection.
[v] When the state executes someone it reasserts its similarity with God.
This doesn't follow from [iv], by any stretch, but even if [v] is true, it's
not clear what it shows about the morality of the death penalty. At best, it
shows that the state has some overweaning motives! As we know, one can do
the right thing for wrong motives. And that means that one has to make the
case properly for the wrongness of the death-penalty. It can't be inferred
from some agent's motives.
So I don't get how this is supposed to work. It's hard work to pick out the
argument from within the rhetoric.
Your punchline is that in order to preserve imaginative and ethical freedom,
we need to deny the state a godlike role in our lives. I take it the idea is
that if we see our lives as controlled from outside, we will not make use of
imaginative and ethical choices that we do in fact have. Now this is surely
true. But it's to do with the way in which we *see* the state. Even without
the death penalty, the state has enormous power in lots of ways, and the
political task, I think, is to promote involvement in politics,
restructuring politics where necessary to enable this, so that we see
ourselves as active agents within the various communities (including the
nation) in whcih we live. Key to this is seeing that collectively we hold
the strings of our own governments. They are not super-human beings, they
are human institutions, answerable to us. I'm not sure that this debate is
close enough to be a strong reason in debates about what powers governments
and judiciary ought to have. But maybe I can be persuaded otherwise.

(3) Again - the fact that you are able to see executions as symbolic
occasions on which the state activates its power of life and death over
individual citizens does not warrant the conclusion that this is what is
intended by those agents of the state who are involved. The best that can be
got from this is that, let us additionally (you do not argue this, but it
seems possible / plausible) suppose that the sentencing judge is aware that
some will view executions in this particular way, when she gives her
sentence, she is morally accountable for how she chose to act given those
foreseeable consequences, and how their reason-giving force weighs along
with the other moral considerations that bear on sentencing.


The violent impact on society is a good reason for not having the death
penalty.
You seem to me to give a good case along these lines in the middle part of
your mail.
I'm not sure that your "main point" contributes much to the argument. But
that may be just because I've failed to see how to reconstruct it in its
full strength.

Jamie




-----Original Message-----
From: reader-list-bounces at sarai.net
[mailto:reader-list-bounces at sarai.net]On Behalf Of Rana Dasgupta
Sent: 26 August 2004 12:11
To: reader-list at sarai.net
Subject: Re: [Reader-list] death penalty - the morality of states
andindividuals


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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