Thursday, April 5, 2018

Defeaters and the death penalty

I want to argue that one can at least somewhat reasonably hold this paradoxical thesis:

  • The best retributive justice arguments in favor of the death penalty are sound and there are no cases where the death penalty is permissible.

Here is one way in which one could hold the thesis: One could simply think that nobody commits the sorts of crimes that call for the death penalty. For instance, one could hold that nobody commits murder, etc. But it’s pretty hard to be reasonable in thinking that: one would have to deny vast amounts of data. A little less crazily, one could think that the mens rea conditions for the crimes that call for the death penalty are so strict that nobody actually meets them. Perhaps every murderer is innocent by reason of insanity. That’s an improvement over the vast amount of denial that would be involved in saying there are no murders, but it’s still really implausible.

But now notice that the best retributive justice arguments in favor of the death penalty had better not establish that there are crimes such that it is absolutely morally required that one execute the criminal. First, no matter how great the crime, there are circumstances which could morally require us to let the criminal go. If aliens were to come and threaten to destroy all life on earth with the exception of a mass murderer, we would surely have to just leave the mass murderer to divine justice. Second, if the arguments in favor of the death penalty are to be plausible, they had better be compatible with the possibility of clemency.

Thus, the most the best of the arguments can be expected to establish is that there are crimes which generate strong moral reasons of justice to execute the criminal, but the reasons had better be defeasible. One could, however, think that there defeaters occur in all actual cases. Of course, some stories about defeaters are unlikely to be reasonable: one is not likely to reasonably hold that aliens will destroy all of us if we execute someone.

But there could be defeaters that could be more reasonably believed in. Here are some such things that one could believe:

  • God commanded us to show a clemency to criminals that in fact precludes the death penalty.

  • Criminals being executed are helpless, and killing helpless people—even justly—causes a harm to the killer’s soul that is a defeater for the reasons for the death penalty.

  • We are all guilty of offenses that deserve the death penalty—say, mortal sins—and executing someone when one oneself deserves the death penalty is harmful to one’s character in a way that is a defeater for the reasons for the death penalty.

(I myself am open to the possibility that the first of these could actually be the case in New Testament times.)

9 comments:

Walter Van den Acker said...

Alex

Have you read what Edward Feser has to say about this?
He is convinced that it would be a heresy to say that there are no cases where the death penalty is permissible.

Alexander R Pruss said...

I haven't, but that would be really surprising, at least as restricted to New Testament times. I assume that he and I will agree that the death penalty is only permissible when a person has been legally adjudged guilty of a capital crime that they in fact committed. But now consider this crazy claim:

C. Every person in New Testament times who has ever been legally adjudged guilty of a capital crime that they in fact committed was in fact either not guilty of it either by reason of non-commission or by reason of insanity.

This claim would be hard to believe. But it doesn't seem to contradict anything in Scripture or Tradition. Scripture does mention murders and other capital offenses in New Testament times (e.g., the murder of Jesus, various crimes committed by addressees of Pauline letters), but it never says that these are offenses for which the person was legally judged guilty, as far as I remember.

So, C is crazy but not heretical.

Walter Van den Acker said...

Alex

If there are no cases where the death penalty is permissible then the death penalty is never permissible, not even when a person has been legally adjudged guilty of a capital crime that they in fact committed.
I am not sure what you mean by 'New Testament times', but regardless, according to at least my understanding of Feser, the claim that there are no cases where the death penalty is permissible is a heresy.
I would really advise you to read Feser and Bessette's book on Capital punishment, because I don't think your "C is crazy but not heretical" really addresses their argument.
BTW, I think you are completely correct from a philosophical point of view, but I fear Feser is correct when it comes to a consistent application of Catholic doctrine.

Alexander R Pruss said...

We need to distinguish between two senses of "never permissible".
1. There is no actual case where it is permissible.
2. There is no hypothetical case where it is permissible.

In sense 1, it is never permissible to imprison someone for killing a unicorn. For it is only permissible to imprison someone for killing a unicorn if someone has actually killed a unicorn. But nobody has ever killed a unicorn, nor (I assume) will anyone ever do it, since there aren't, and won't be, any unicorns. But of course there are hypothetical cases where it is permissible to imprison a unicorn.

The Church's infallibility only regards faith and morals. Apart from the particular cases of murder described in the Bible, it is not a question of faith or morals whether in fact anyone ever commits a murder. But if no one ever commits a murder, it is not permissible to execute anyone for murder. The same goes for other capital crimes.

By New Testament times, I mean: after the year 30 AD or so.

Walter Van den Acker said...

Alex

No, we don't need to distinguish between two senses of "never permissible". "Never permissble" is unambiguous and covers all cases, both actual and hypothetical.
If you read Feser, you will find out that he isn't talking about whether somebody actually commits a murder when he kills someone. The question is whether it is ever permissible to execute someone, period. If there are no cases where the death penalty is permissible, then the DP is never permissible. Yet, Feser considers that position heritical. IOW if you think that there are no cases where the DP is permissible, you are, according to Feser, a heretic. And so would Pope Francis be if he were to claim that there are no cases, in New Testament Times, where the DP is permissible.
Again, I advise you to read Feser and Bessette's book before you can argue that one can somewhat reasonably hold this paradoxical thesis.
I agree with you that one can hold that thesis, but Feser argues that a true Catholic can't.

Alexander R Pruss said...

Well, what *I* meant by "there are no cases" was "there are no actual cases", rather than "there are neither actual nor hypothetical cases". (Compare: If I say "There are no cases of someone running a 4 minute mile while reciting the Apology from memory", I am talking only of actual cases, even though hypothetical cases are quite possible.)

Walter Van den Acker said...

Alex


If among the millions of killings since the beginning of New Testament Times, more than 2000 years ago there hasn't been a single one for which the death penalty was permissible, then you are going to need a very far-fetched hypothetical to allow for the death penalty.
I mean, if we should have shown clemency in the cases of Hitler and Stalin and Jack-the-Ripper and Ted Bundy..., I really don't see in which hypothetical cases we should not show clemency.

Alexander R Pruss said...

No dispute there. But it's one thing for something to be crazy and another for it to be heretical.

Walter Van den Acker said...

Alex

For what it's worth, I don't think the view that here are no cases where the death penalty is permissible is crazy. It actually makes a lot of sense to me, but I am not Edward Feser.