If part one of my case against capital punishment wasn’t alienating enough to those nominally on my side of the issue, part two should finish the job.
This particular section will not resonate with everybody. First, I’m going to assume that revenge is not immoral across the board. Those who believe revenge is not always impermissible or ill-advised might be able to appreciate another reason why the death penalty is so odious. In part one, we talked about why merely justifying the idea that some people deserve to die is insufficient to justify our death penalty system. Likewise, defending the permissibility of revenge when terrible wrongs have been committed is insufficient to justify the death penalty system.
In our system of capital punishment, even when everything goes as it’s designed – when a person guilty of a heinous crime is sentenced to death – the virtues of revenge are almost entirely absent. Advocates of capital punishment seem to have something quite lofty in their minds, but the clinical, cowardly, impersonal way in which life is being taken is enough to drain any respect I might’ve had for capital punishment.
Opponents of the death penalty disparagingly use the phrase “legalized revenge”, a concept which does strike me as repellant, though not for the same reason as most who use the term. For me, it’s the “legalized” part, not the “revenge” part. Our legal system is intended to be impersonal, which is usually a pretty good thing. But revenge is personal by nature. Make no mistake, the death penalty is about revenge – it’s certainly not about restorative justice or the prevention of crime. Yet, it’s carried out in a plodding, drawn-out, legalistic, and often disturbingly Kafkaesque fashion. There’s nothing cathartic or satisfying – let alone virtuous – about this kind of legalized “revenge” at the hands of a dispassionate third party. (Not to mention, emotionless killing is unsettlingly creepy.) It no longer resembles anything like honorable revenge. So what’s the point?
In his book Why Honor Matters, Tamler Sommers writes that while vengeance is “hard to contain, hard to get right”, it’s certainly not always immoral. In fact, in many circumstances, we typically regard those who lack any desire for revenge with suspicion, if not disgust. In book 34 of Genesis, a young woman named Dinah is kidnapped by a powerful man and raped. While her two brothers are grieved and angry, their father, Jacob, seems to be neither; he is primarily concerned with avoiding further conflict and how he might profit from his daughter’s rapist by being paid damages. The two brothers, at great personal risk, disobey their father and kill their sister’s rapist. (And a lot of other people. It’s the Old Testament.) As Sommers explains,
“The brothers’ virtue lies not just in the act of revenge – which is gruesome and arguably disproportionate – but also in the anger that causes it. By adopting a prudent ‘what’s done is done, and let’s make the best of it’ approach, Jacob shows nothing but a concern for his safety and profit. The two brothers, by contrast, are too outraged over the treatment of their sister to engage in a cost-benefit analysis. Their anger leads to a decidedly imprudent act of revenge, and it’s the imprudence that demonstrates loyalty to their sister.” (pp.148-149)
Of course, no one in their right mind would offer unconditional support for any and all tales of vengeance. There’s a difference between honorable and dishonorable revenge. As Sommers puts it, “honorable avengers demonstrate virtues like bravery, loyalty, and integrity. They take risks and accept responsibility for their actions.” (p.146) When these qualities are absent, we’re repelled. So, are the virtuous qualities of revenge present in our capital punishment system? (Hopefully you can recognize a rhetorical question when you see one.)
Most of us are naturally drawn to some stories of revenge, fictional or not, and naturally repelled by others. What accounts for these different reactions? We don’t consistently offer a blanket condemnation or affirmation of revenge. I think it has more to do with the conditions Sommers identifies. Take the case of three Israeli settlers in 2014, who drove through East Jerusalem looking to avenge the deaths of three other Israelis in the West Bank. The settlers were looking for someone “lightweight” who could be easily targeted. Finally, they happened across a 16 year old Palestinian. They threw him in their car before speeding off to a remote area. The three settlers beat the teenager to death and then lit him on fire. Although they attempted to destroy all the evidence, they were quickly apprehended and convicted of murder. As Sommers explains,
“...honorable avengers demonstrate virtues like bravery, loyalty, and integrity. They take risks and accept responsibility for their actions. The three Israeli settlers showed none of these characteristics. They were cowards, looking for a physically slight victim to make the abduction easier and less risky. They had no personal ties to the Israeli victims … The killers did not accept responsibility; they tried to burn all evidence of their behavior. One of them pleaded insanity at the trial.” (p.146)
Sommers goes on to offer a novel argument against the death penalty at the end of the fifth chapter of Why Honor Matters. He begins with an illustration from the 1988 presidential debates, in which Michael Dukakis, leading the polls at the time, is widely believed to have so spectacularly fumbled an answer that it cost him the election. Moderator Bernard Shaw asked, “If [your wife] Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”
Unperturbed, Dukakis replied, “No, I don’t, Bernard, and I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime. We’ve done so in my own state, and it’s one of the reasons why we have had the biggest drop in crime of any industrial state in America, why we have the lowest murder rate of any industrial state in America.”
After the election, it was concluded that any presidential candidate opposed to the death penalty was unelectable. But was the policy itself really the issue?
“...opposition to the death penalty wasn’t the real problem with Dukakis’s response. Rather, it was the clinical nature of his answer to such a personal question. Like Jacob, Dukakis showed no depth of feeling, no anger, no fierce loyalty to a close family member. Kitty has been raped and killed, and Dukakis is worried about whether the death penalty is a deterrent? This is no time for a cost-benefit analysis.” (pp.149-150)
He invites us to imagine if this had been Dukakis’s response instead:
“‘Bernard, as you know, I’ve been against the death penalty all of my life. I don’t think it’s the state’s business to end the lives of its citizens, no matter how heinous their actions. And I’ll tell you something else: if Kitty had been raped and murdered, I wouldn’t want the man executed by lethal injection fifteen years later, after dozens of appeals and legal challenges. I’d want to track down that son of a bitch before the law could get ahold of him and kill him myself with my bare hands. I’d think it was my job to do it, not some district attorney or judge or jury of twelve people who didn’t even know her. Maybe society can’t allow that to happen, but that’s what I’d want to do in that situation.’
This response would have allowed Dukakis to retain his opposition to the death penalty and turn the tables on those who accused him of being ‘soft on crime’. Now it’s the proponents of capital punishment who are clinical, cowardly, and ‘by the book’. They’re the ones who want a torturous legal bureaucracy to do what a decent husband should want to do himself. By tapping into virtuous qualities of revenge, Dukakis could have had the best of both worlds.
Critics of the death penalty often refer to it as ‘legalized revenge’, but the truth is closer to the opposite. Honor cultures, as we’ve seen, think it’s shameful when third parties punish people who have wronged them or their families. Revenge is personal. Most arguments against the death penalty involve deterrence and racial bias, and thus far arguments haven’t resonated with a majority of the US population. Is the death penalty a deterrent? Probably not, but proponents can reply that it’s not about deterrence; it’s about justice. Is there racial bias in how the death penalty is applied? Absolutely. But advocates can reply that we must work to eliminate the racial bias, not prohibit the practice. But what if, like my hypothetical Dukakis, opponents called the death penalty dishonorable—a sign of cowardice and weakness? This challenge might have greater resonance, especially for people in the so-called honor states where capital punishment is most popular.”
Why Honor Matters (pp.150-151)
There’s something deeply attractive to me about the honor culture defended in Sommers’ book. Honor can ward off cowardice, shamelessness, and selfishness. Properly contained, it can engender courage, integrity, self-respect, loyalty, solidarity, and potentially cure some measure of alienation and atomization. (If you’re at all interested in moral philosophy and moral psychology, I can’t recommend the Sommers book enough.)
Like much else, revenge can go horribly wrong. Granting that someone deserves to die clearly doesn’t mean that every way of going about it is just as good as any other. Some stories of revenge killings, fictional and non-fictional, possess irresistible virtues that inspire admiration. But what’s honorable about impersonal capital punishment from a third-party who didn’t even know the victim? Death by lethal injection, years after the crime, at the hands of a faceless employee of the state is a far cry from those stories of revenge. Where is bravery, courage, or risk-taking, or strength, or loyalty? None of that is present. Capital punishment doesn’t deserve to be called legalized revenge. It’s a cowardly, sanitized, impersonal, embarrassing husk of what its proponents think they embody.
The sickly reality of the death penalty is extremely far removed from what some apologists seem to have in mind. For some, I would imagine this is an unwelcome reminder of what they probably already knew. I have immense sympathy for those who yearn for justice, who hate evil and wish to hold the wicked accountable. Of course, it’s not always so noble. Bellicose advocacy of capital punishment can be an act of overcompensation. Some do not possess the virtuous qualities required for revenge, and seem to think that performatively bellowing on social media demonstrates that they don’t lack them. So they loudly inform us of their courage, loyalty, integrity, and strength, as a faceless employee of the state carries out a sanitized, impersonal act of “revenge” that’s been stripped of every virtue.
Abolish the Death Penalty
If one were to bet on my position on capital punishment based on some of my other views, they’d probably guess wrong. I believe in free will; I think human beings are responsible for their actions; I’m not opposed to retribution in all cases; I think there are virtuous qualities to revenge; and I think some people deserve to die. Further, the more common arguments against the death penalty, to me, have little to no import:
“The standard argument for abolishing the death penalty holds that even when moral agents have culpably perpetrated heinous wrongs, executing them is an unacceptable attack on their dignity, something that even they do not deserve to suffer.”
Their dignity? Were this the only reason to oppose the death penalty, I would unequivocally support it. Needless to say, I’m the ideal audience for advocates of the death penalty! But their apologetics don’t sway me. Maybe some of the considerations I’ve raised have been slightly unorthodox, but I happily join those who stand against state-sanctioned killing. The opponents of capital punishment seem to be altogether more clear-eyed about the imperfect and morally arbitrary nature of the state’s process of determining guilt and carrying out executions.
In sum:
Arguing that some people deserve to die is not sufficient to show that a given organization should have the authority to carry out executions. The death penalty must be defended in practice. But for many of us, this would require an unwarranted degree of trust in the competence and wisdom of police, lawyers, juries, etc.
Since the application of the death penalty will inevitably be morally arbitrary in some cases — perhaps due to the imperfect determination of guilt or the morally arbitrary nature of the laws themselves — the reality of our situation is that we cannot have a death penalty system without killing people who don’t deserve to die. Because saving innocent life is far more important than ending the lives of the guilty, this should dissuade us from continuing our system of capital punishment. (Of course, a proponent of capital punishment might remain unpersuaded if they have a high tolerance for killing people who don’t deserve to die.)
Unlike lesser forms of punishment, like imprisonment, capital punishment is not reconcilable with the principle of remedy. When mistakes are inevitably made, the punishment for the wrongly convicted cannot be brought to an end, they cannot be given damages, and reconciliation is impossible.
Finally, the virtuous qualities of revenge are absent in the death penalty system.