Tuesday, November 20, 2007

 

Death Penalty Benthamites

While much of the news about the death penalty of late has focused on the Baze case, in which the Supreme Court is considering the legality of how people are put to death by lethal injection, there are really two more important issues out there. First, fewer executions are occurring. In fact, the number of death sentences and executions recently have been about half what they were in the late 90's. Second, studies are showing that the death penalty may have a deterrent affect, as most recently reported on the front page of last Sunday's New York Times.

These two trends work against one another, of course. If the death penalty deters crime, why would we be doing less of it?

That question seems the right one if your frame of reference is a strict (and overly simplified) form of Benthamite Utilitarianism-- that is, if you measure the morality of actions simply in terms of what creates the greatest good for the greatest number. However, most of us are not Benthamites. While that practical measure may truly inspire many opinions, many of us at least claim to draw our moral principles from other sources such as the Constitution or Christian faith, and if those things are truly our gauge, it may be that we are against the death penalty regardless of whether it is effective or not at deterring crime. As Jack Balkin points out, torture and the execution of thieves would also deter crime, but even our Benthamite impulses do not lead many of us so far as to support those techniques.

In reference to the Constitution, the Eighth Amendment plainly sets out a check on criminal law, and specifically a limit on actions which a strict Benthamite framework would support-- that there can be no cruel and unusual punishments. Certainly, there is an originalist argument against revisiting this issue, which we will no doubt hear articulated in the Baze opinions.

And what of faith? If Christ calls us to something that is not practical in the Benthamite sense, must we follow that call? For example, in John 8 Christ comes upon an execution authorized by the law and stops it by telling the executioners they do not have the moral authority to go through with the killing. Should that be directive to Christians, despite the deterrent effect that executions may well have?

Comments:
sorry, this doesn't pertain to your writing for today, but I heard something on the radio a minute ago and it made me think of you. latest stats rank Detroit as the most dangerous place in the country to live (highest crime rate, types of crimes, etc.). Why does Detroit consistently rank so high on these types of lists? Just curious...
 
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It seems to me that the death penalty is both misapplied and very inefficient for society. Our laws would have us only kill people who kill people. I don’t think that killers are the gravest threat to the fabric of our society, yet they alone are eligible for the greatest penalty. They can be very effectively controlled by taking them out of society and locking them up for a very long time. That’s fine with me, but the law is troubled by the ethos of murder both as a crime and as a means of punishment. Perhaps it’s because this crime is so egregious to the victim, but society as a whole is insulted and assaulted, but not actually harmed by people who commit murder. Yes, I concede all the arguments against anarchy, but when a murderer is quickly captured and isolated, society survives just fine. We want a measure of revenge, but we can live and function without it.

The crime which should require that the perpetrator be absolutely expunged from society sheds no blood. Child molesters, pederasts, and people who commit crimes against our children have been proven to be incurable. They are ill equipped to live in society with adults and children. They find their own basest urges irresistible and society finds their actions reprehensible and repugnant. They cleverly commit their crimes again and again until they are finally caught…after having altered the psychology and social behavior of sometimes hundreds of victims who will never recover what they have lost. The victims’ future contribution to society permanently altered, if not completely derailed. Once caught, the criminal serves some time and is subsequently released to repeat their crimes whenever the opportunity presents itself again.

Each of their many victims is irrevocably changed for the worse. Society is worse off because of this crime. The damage done to society as a whole is severe and immeasurable, and yet, this crime is not viewed as capital. I would much rather the debate be applied to these criminals than to people who “merely” commit murder. Perhaps then we could “move the needle” (if you’ll pardon the expression) on what is considered a significant, just, and appropriate penalty.
 
Interesting arguments in Anon. 12:01, about what crimes society sees as the most serious . . .

I read that New York Times article about the DP as a deterrent, too, and the studies seemed unbelievably simplistic to me. Maybe that means I am not a Benthamite.

Just because there have been fewer murders in some states that have more executions does not mean, in my opinion, that the DP deters crime. Yes, supposedly the authors adjusted for other factors, but how can you adjust for what's in a person's mind or psyche (i.e. the murderer's?)

In the article, a counterargument was made comparing Canada, with no death penalty and fewer murders than the US.

Maybe I am really dense and missing something in the deterrence argument, but I don't buy it for a minute as a reason for having the death penalty--even if I was inclined to support the death penalty, which I'm not.
 
I don't read John 8 - the stoning of the woman caught in adultery as an "execution" in the same sense as the death penalty. The stoning was not punishment meted out by government for criminal conduct, but religious judgment imposed by those who were more concerned with actions than the condition of the heart. If I am not mistaken, the religious leaders and Pharisees were allowed by Rome to continue to enforce "religious laws", but Rome remained in control of civil law. So, the recitation by John of the events, I think, teaches something about the Gospel that is missing in the religious leaders of that day.

On the other hand, Paul tells us that governmental authority is placed over us by God. Jesus said we are to obey and respect government. So, if the law permits execution, we may not agree, but we are to respect and obey. Whether we are obliged to obey a law that is immoral (according to our own sense of right and wrong) or whether we are to refuse to comply and suffer the consequences is a more difficult topic.
 
Friday, Haiku day
is too far away, so lets
give God thanks today

Thanksgiving is great
the weather colder yet bright
a time for family

.
 
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